(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court.
Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 26, 1993 -- Decided January 26, 1994
GARIBALDI, J., writing for a unanimous Court.
At 2:29 a.m. on January 17, 1990, New Jersey State Trooper Richard Gacina and his partner,
Trooper DiSilva, stopped a car driven by defendant Brian L. Smith for speeding on the New Jersey
Turnpike. Defendant Geraldine Muhammad was a passenger in the right front passenger seat and an
unidentified juvenile was sitting in the right rear passenger seat of the vehicle. As the car was coming to
a complete stop, Trooper Gacina observed movement in the car which he described as "commotion
within the vehicle." According to the trooper, that movement put him in fear for his own and his
partner's safety. Because Trooper Gacina wanted to secure the scene in the best way that he could, he
asked Smith, the driver, to step out of the vehicle. Trooper Gacina then conducted a pat-down search
of Smith but felt nothing suspicious.
Trooper Gacina then approached the passenger side of the car and asked Muhammad to step
out of the car. He informed her that he intended to frisk her. As Muhammad got out of the car, she
turned and gave Smith a prolonged stare, making the trooper nervous and apprehensive. After
Muhammad stepped out of the car, Trooper Gacina took her to the rear of the vehicle. Because the
area of the stop was well lit, Trooper Gacina was able to observe, underneath Muhammad's open jacket,
a very large bulge protruding from under her shirt. According to Trooper Gacina, when he began to pat
Muhammad down, she became very nervous, started to cry, and stated that "It's not mine, they made
me put it in there." Trooper Gacina continued his pat-down search and felt a very hard bulge that he
believed to be a gun. When Gacina removed the object from underneath Muhammad's shirt, he
discovered that it was a clear plastic bag containing crack cocaine. Trooper Gacina arrested both
Muhammad and Smith. A subsequent search of the juvenile passenger as well as the vehicle uncovered
additional drug paraphernalia.
Smith and Muhammad were charged with possession of a controlled dangerous substance and
possession with intent to distribute. They both moved to suppress the crack cocaine found on
Muhammad's person and the additional evidence found incident to the arrest. The trial court denied
both motions to suppress, finding that the facts known to the officer prior to the pat-down were sufficient
to justify a protective search under Terry v. Ohio. Thereafter, Muhammad and Smith pleaded guilty to
possession with intent to distribute and were sentenced to ten years.
Muhammad and Smith separately appealed the trial court's denial of their motions to suppress.
The Appellate Division reversed Smith's conviction, finding that the pat-down of Muhammad was
unjustified because the commotion in the car was not sufficient to warrant an order that Muhammad
step out of the car, nor was it sufficient to cause the trooper to believe that Muhammad was so
dangerous as to warrant a protective pat-down search. The court concluded that because the pat-down
that eventually revealed the contraband was tainted by the improper ordering of Muhammad to step out
of the car, it should have been suppressed.
In Muhammad's appeal, a different panel of the Appellate Division affirmed the denial of the suppression order and upheld her conviction. The court determined that the order that Muhammad get out of the vehicle was permissible and that the unusual movements in the car, the lateness of the hour, and the court's awareness of the danger police officers face in patrolling highways late at night supported a basis for the protective pat-down search. The court noted that even if those facts were insufficient to warrant a protective search, Muhammad's actions subsequent to the stop but prior to the frisk, including her emotional outbursts and the observation of the bulge under her blouse, were
objectively reasonable grounds to create a well-grounded suspicion that she was armed. The Supreme
Court granted certification in both cases.
HELD: The State Trooper's order to the passenger, Geraldine Muhammad, to step out of the car
stopped for a routine traffic violation, and the officer's pat-down of that passenger were
reasonable, and hence, permissible under the Fourth Amendment of the Federal Constitution
and Article I, Paragraph 7 of the New Jersey Constitution. Therefore, the trial court properly
denied the motion to suppress the cocaine and drug paraphernalia found incident to arrest.
1. In determining whether Trooper Gacina's order to the passenger, Muhammad, to get out of the
car was reasonable, the Court is guided by the seminal case, Pennsylvania v. Mimms. In Mimms, the
U.S. Supreme Court balanced the driver's interest in privacy against the State's interest in protecting its
police officers. The Court concluded that the State's interest in the safety of its officers far outweighed
the driver's interest in not being made routinely to step out of a car after it has been stopped for a traffic
violation. The Court held that the order to the driver to step out of the vehicle was reasonable and thus
permissible under the Fourth Amendment. (pp. 8-10)
2. Mimms, as applied to drivers, satisfies the New Jersey Constitution. Here, the Court decides
whether and under what conditions Mimms should be extended to passengers. The touchstone of the
Court's analysis is the reasonableness, under all circumstances, of the particular governmental invasion
of a citizen's personal security. (pp. 10-16)
3. Although the State's interest in safety remains the same whether the driver or the passenger is
involved, requiring a passenger to step from the vehicle in the course of a routine traffic stop represents
a greater intrusion on the passenger's liberty than it does on a driver's liberty. In applying the Mimms
balancing test to passengers, the Court concludes that the Mimms per se rule should not be applied
automatically to passengers. There will be instances, however, in which police officers, with less than a
reasonable suspicion that a passenger is engaged in criminal activity or is armed or dangerous, may
reasonably order a passenger to step out of the car. (pp. 16-20)
4. To support an order to a passenger to step out of a vehicle stopped for a traffic violation, the
officer must point to some fact or facts in the totality of the circumstances that would create in a police
officer a heightened awareness of danger that would warrant an objectively reasonable officer in
securing the scene in a more effective manner by ordering the passenger to step out of the car. To
justify a pat-down of an occupant who has stepped out of a vehicle, the officer must find specific
articulable facts to demonstrate that a reasonably prudent person under the circumstances would be
warranted in the belief that his or her safety or that of others was in danger. (pp. 20-22)
5. In this case, Trooper Gacina's order was objectively reasonable. The unusual movements of the
passengers in the car, the early morning hour, and a largely deserted Turnpike are facts that warrant
proceeding with extra caution in handling the occupants of the vehicle. Moreover, the pat-down of
Muhammad was valid. The premature announcement of Officer's Gacina's intent to perform a pat-down
does not debilitate the officer so that he will not later be able to perform a pat-down should sufficient
facts come to light. Muhammad's actions after she stepped from the vehicle, when considered in the
totality of the circumstances, were sufficient to support a reasonable, articulable suspicion that she was
armed and dangerous. (pp. 22-26)
Judgment of the Appellate Division in Muhammad's appeal is AFFIRMED. Judgment of the
Appellate Division in Smith's appeal is REVERSED and the judgment of the trial court in that case is
REINSTATED.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, O'HERN and
STEIN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-28/
47 September Term 1993
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v. A-28
BRIAN L. SMITH,
Defendant-Respondent.
___________________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v. A-47
GERALDINE MUHAMMAD,
Defendant-Appellant.
____________________________________
Argued October 26, l993 -- Decided January 26, 1994
On certification to the Superior Court,
Appellate Division.
Richard W. Berg, Deputy Attorney General,
argued the cause for appellant State of New
Jersey (Fred DeVesa, Attorney General of New
Jersey, attorney; Mr. Berg, Kathleen M.
Gusler.
Diane Toscano, Assistant Deputy Public Defender,
argued the cause for appellant Geraldine Muhammad
(Zulima V. Farber, Public Defender, attorney).
Susan B. Gyss, Assistant Prosecutor, argued
the cause for respondent State of New Jersey
(Carmen Messano, Hudson County Prosecutor,
attorney; Gaetano T. Gregory, Assistant
Prosecutor, on the briefs).
Linda Mehling, Assistant Deputy Public
Defender, argued the cause for respondent
Brian L. Smith (Zulima V. Farber, Public
Defender, attorney).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal addresses the admissibility of evidence seized
in the pat-down search of a passenger in a lawfully stopped
automobile. The critical questions concern the reasonableness of
a State Trooper's ordering a passenger out of a car, and his
subsequent pat-down of that passenger. We find that both the
trooper's order to the passenger to step out of the car and his
pat-down of that passenger were reasonable, and hence permissible
under the Fourth Amendment of the Federal Constitution and
article l, paragraph 7 of the New Jersey Constitution.
At 2:29 a.m. on January 17, 1990, New Jersey State Trooper Richard Gacina and his partner, Trooper DiSilva, performed a "speedometer pace" of a car travelling on the New Jersey Turnpike. Trooper Gacina determined that the car was travelling at 68 m.p.h. There were three people in the car later identified as defendant Brian L. Smith, the driver; defendant Geraldine Muhammad, who was in the right front passenger seat; and an unidentified juvenile who was sitting in the right rear passenger seat.
Trooper Gacina activated his overhead lights to signal the car to pull over. The driver responded in an "average" amount of time to the signal to pull over, taking roughly thirty to forty-five seconds to stop the car.
As the car was coming to a complete stop, Gacina noticed
movement in the car. Trooper Gacina testified that while the car
was pulling over, he saw a passenger in the right rear seat lean
all the way forward to Muhammad, the passenger in the right front
seat, who then turned around and faced the rear seat passenger.
Gacina could not see the passengers' hands and thus could not see
if the passengers had passed anything between them. After the
car had stopped, the driver turned to his right and, with his
right arm, reached over the front seat toward the passenger in
the rear.
Gacina testified that based on his four years of experience
as a trooper, he expects some movement after signalling a vehicle
to pull over. For example, drivers often will move to retrieve
their credentials. Gacina testified, however, that "it is not
too often that I see the passenger or passengers make movements
such as [occurred in this case]." The trooper testified that the
movements, which he described as "commotion within the vehicle,"
put him in fear for his own and his partner's safety. He advised
his partner to proceed with caution, and decided that once the
car had pulled over, he would have all the auto occupants step
out of the vehicle so that he could frisk them. He did not radio
for backup.
After the auto and the troopers had pulled to the side of
the turnpike, Trooper Gacina and his partner approached the auto,
Gacina along the driver's side and DeSilva along the passenger's.
Trooper Gacina did not draw his gun but had his hand placed over
his holster and weapon. On reaching the Cadillac, Gacina told
the driver, defendant Smith, that he had been speeding and that
he, the trooper, intended to frisk all the people in the car.
Gacina did not ask Smith for his driver's license or
registration because he did not want to "have everybody looking
around in the glove box, over the visor, et cetera." Instead,
Gacina "wanted to secure that scene in the best way," which would
be to perform protective pat-downs "immediately."
Gacina first conducted a pat-down of the driver, but felt
nothing suspicious. Trooper DiSilva then walked Smith to the
front of the car. While his partner watched Smith at the front
of the car, Trooper Gacina approached the passenger side of the
car and asked Muhammad to step out of the car. Gacina informed
Muhammad that he intended to frisk her. Trooper Gacina testified
that as Muhammad got out of the car, she turned and gave the
driver, Smith, a prolonged stare. That stare made Gacina
extremely nervous and apprehensive. After Muhammad had alighted
from the car, Trooper Gacina took her to the rear of the car.
Although it was 2:29 in the morning, Gacina testified that
the lighting conditions were "very good." The headlights and
high beams were on as well as a spotlight, and the Turnpike was
very well illuminated. With the benefit of the good lighting,
Gacina noticed, underneath Muhammad's open jacket, a very large
bulge protruding from under her shirt. The bulge was located
on Muhammad's "left front, in her chest area, by her lapel of her
shirt." Gacina described the size of the bulge as equal to the
size of an "average man's clinched fist." Finding Gacina's
testimony somewhat unclear as to the sequence of events, the
trial court asked him to relate "the sequence of events, from the
moment you came around to the passenger side of the vehicle."
Gacina responded that "it would be that I asked her to step out,
saw the protrusion or the bulge, and then I told her that I would
be patting her down."
When Gacina made the gesture to begin to pat Muhammad down,
she "became very nervous," started to cry, and Muhammad blurted
out, "It's not mine, they made me put it in there." Gacina told
her to relax and continued with the pat-down. He felt the bulge,
finding it "very hard." Gacina testified that he was then
"positive that it was a handgun." At one point, Gacina
demonstrated how the bulge might have resembled a pistol if the
barrel of the gun were under the arm and only the handle were
exposed. When Gacina removed the object from underneath the
woman's shirt, he discovered that it was a clear plastic bag
containing "several large, hard, yellow-white chunks, almost like
blocks," that were later positively identified as crack cocaine.
Gacina then placed both Muhammad and Smith under arrest. A
subsequent search of the juvenile who had been sitting in the
backseat uncovered a stainless steel portable gram scale hidden
in the juvenile's pants. The police found a glass smoking pipe
in an ashtray.
Smith and Muhammad were charged with possession of a
controlled dangerous substance and possession with intent to
distribute. Defendants both moved to suppress the crack cocaine
found on Muhammad's person and the additional evidence found
incident to the arrests. At the suppression hearing, only
Trooper Gacina testified. After a joint hearing the trial court
denied both defendants' motions to suppress.
The trial court found that the facts known to the officer
prior to the pat-down were sufficient to justify a protective
pat-down under Terry v. Ohio,
392 U.S. 1,
88 S. Ct. 1868,
20 L.
Ed.2d 889 (1968). The court reasoned:
The driver was searched; nothing was found on
him. Whether or not a patdown search of the
driver was justified or not by the Trooper is
irrelevant. At this point, when Miss
Muhammad was searched, that is the point when
we all have to focus on what facts had been
developed up to that point, that would allow
an inference by an objective Trooper that his
safety or that of others was in danger.
The observation of the bulge, the crying of
the defendant and statement together with the
movement -- whether they are furtive or
blatant, which was somewhat difficult to pin
down -- all together, it warrants a belief on
the part of an objective person that his
safety or that of others may be in danger.
Muhammad and Smith both then pleaded guilty to possession with
intent to distribute, and were sentenced to ten years.
Muhammad and Smith separately appealed the trial court's
denial of their motions to suppress. The Appellate Division, in
an unpublished per curiam opinion, reversed Smith's conviction,
holding that the evidence should have been suppressed. In a
separate unpublished opinion, another panel of the Appellate
Division affirmed the denial of the suppression order and upheld
Muhammad's conviction.
In Smith's appeal, the Appellate Division found the pat-down
of Muhammad to be unjustified. Although the court recognized an
officer's authority to order a driver out of a vehicle that has
been stopped for a traffic violation, the court found "no similar
justification for routinely ordering a passenger out of an
automobile stopped for a traffic violation." The "commotion" in
the car was not sufficient to warrant an order that Muhammad
alight from the car, nor was it sufficient to cause the trooper
to believe that Muhammad was so dangerous as to warrant a
protective pat-down. Although the bulge noticed by Trooper
Gacina did indeed provide a reasonable suspicion to warrant a
pat-down, that bulge would never have been observed had Muhammad
not been ordered out of the car. Muhammad's outburst and the
observation of the bulge, therefore, were the result of an
unlawful order that Muhammad step out of the vehicle. Thus, the
pat-down that eventually revealed the contraband was tainted by
the improper ordering of Muhammad to step out of the car.
In Muhammad's appeal, the court determined that the pat-down
was warranted. The court implicitly held that the order that
Muhammad, the passenger, get out of the vehicle was permissible.
The court found that the unusual movements in the car, the
lateness of the hour, and the court's awareness of the danger
police officers face in patrolling our highways at night
supported a basis for the protective search. However, even if
the unusual movements of the vehicle's occupants and the lateness
of the hour were insufficient to warrant a protective search,
events subsequent to the stop, but prior to the frisk, i.e.,
Muhammad's emotional outburst and Gacina's observation of the
bulge under defendant's blouse, were "objectively reasonable
grounds to create a well grounded suspicion that defendant was
armed." Thus, the Appellate Division concluded that Gacina was
"justified in conducting the pat-down search of defendant and
retrieving the contraband in question from her."
Muhammad unsuccessfully moved for reconsideration of the
Appellate Division's decision. The State in Smith and Muhammad
in Muhammad filed petitions for certification. We granted both
petitions. ___ N.J. (1993), and __ N.J. __ (1993). We now
hold that the trial court properly denied the motion to suppress
the cocaine and drug paraphernalia. We therefore reverse the
Appellate Division in Smith and affirm the Appellate Division in
Muhammad.
Defendants do not disagree with the conclusions that the officers lawfully stopped the vehicle and that Trooper Gacina was entitled to ask the driver, Smith, to step out of the car. The critical issue is whether Officer Gacina's order to the passenger, Muhammad, to get out of the car was reasonable.
In evaluating that issue, we are guided by the seminal case of Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed.
2d 331 (1977). In Mimms, two Philadelphia police officers
stopped a vehicle with an expired license plate and asked the
driver to step out of the car and to produce a driver's license
and registration. After Mimms had alighted from the vehicle, the
officers observed a large bulge under Mimms' jacket. Fearing
that the bulge might be a weapon, the officer frisked Mimms and
discovered in his waistband a .38 caliber revolver loaded with
five rounds of ammunition." Id. at 107, 98 S. Ct. at 331, 54 L.
Ed.
2d at 334.
The Court determined that the validity of the pat-down was
an independent inquiry from the order to step out of the vehicle.
Id. at 109, 98 S. Ct. at 332, 54 L. Ed.
2d at 336. Ordering a
person out of a car constitutes a seizure under the Fourth
Amendment because the person's liberty has been restricted. See
State v. Davis,
104 N.J. 490, 498 (1986) (citing Terry, supra,
392 U.S. at 16, 88 S. Ct. at 1877, 20 L. Ed.
2d at 903). Whether
such a seizure is constitutional depends on the reasonableness of
the order. A pat-down of the person ordered from the car is a
separate Fourth Amendment event and must be evaluated under the
Terry standard.
In Mimms, supra, therefore, the Court separately addressed
the "narrow question" of "whether the order to get out of the
car, issued after the driver was lawfully detained, was
reasonable and thus permissible under the Fourth Amendment." 434
U.S. at 109, 98 S. Ct. at 332,
54 L. Ed 2d at 336. Even though
the police observed no unusual or suspicious movements prior to
the subject vehicle's stop, the State argued that the officer
could order the driver out of a lawfully stopped vehicle because
of safety concerns.
The Court balanced the driver's interest in privacy against
the State's interest in protecting its police officers. It
concluded that the State's interest in the safety of its officers
far outweighed the driver's interest in not being made routinely
to step out of a car after it has been stopped for a traffic
violation. It found such an intrusion on the driver de minimis.
Id. at 111, 98 S. Ct. at 333, 54 L. Ed.
2d at 337. In the words
of the Court, "The police have already lawfully decided that the
driver shall be briefly detained; the only question is whether he
shall spend that period sitting in the driver's seat of his car
or standing alongside it." Ibid. The Court determined that
requiring the driver to spend that time outside of the car is
"not a `serious intrusion upon the sanctity of the person,' but
it hardly rises to the level of a `petty indignity.'" Ibid.
(quoting Terry, supra, 392 U.S. at 17, 88 S. Ct. at 1877, 20 L.
Ed.
2d at 903). What is at most a mere inconvenience cannot
prevail when balanced against legitimate concerns for the
officer's safety. Ibid.
In contrast to the minimal intrusion on a person's privacy,
the police officer's safety is greatly enhanced when an officer
can order the driver out of the car. If the driver is out of the
vehicle, he or she is less able to make unobserved movements that
might endanger the officer. Id. at 110, 98 S. Ct. at 333, 54 L.
Ed.
2d at 336. Moreover, the officer is not forced to stand by
the driver's side of the vehicle in potential danger from
oncoming traffic. Id. at 111, 98 S. Ct. at 333, 54 L. Ed.
2d at
337. According to the Mimms Court, "What is at most a mere
inconvenience [to the driver] cannot prevail when balanced
against legitimate concerns for the officer's safety." Ibid.
Thus, the Court upheld the officer's order that the driver exit
the vehicle. Ibid.
The Mimms decision rested solely on the Fourth Amendment of
the Federal Constitution. The Fourth Amendment defines the
maximum permissible intrusion on the rights of citizens by the
State. Article I, paragraph 7 of the New Jersey Constitution may
afford greater protection than the federal constitution affords.
Davis, supra, 104 N.J. at 502. Until today we have not
explicitly spoken on whether the holding in Mimms is consistent
with the protections offered by the New Jersey Constitution.
However, in State v. Lund, ll
9 N.J. 35, 39 (l990), we discussed
Mimms without criticism. Today, we conclude that the Mimms test,
as applied to drivers, satisfies the New Jersey Constitution as
well. The Appellate Division has implicitly endorsed the Mimms
standard. In State v. Nittolo,
194 N.J. Super. 344, 346 (1984),
the court upheld the ordering of a driver from a parked vehicle
based on an anonymous tip that he was engaged in wrongdoing.
Indeed, the Appellate Division has extended the Mimms test
to passengers as well. See State v. Conquest,
243 N.J. Super. 528 (l990) (holding objectively reasonable trooper's order to a
passenger to get out of car, when the trooper noticed passenger
had bent out of sight as driver was producing papers); State v.
Carter,
235 N.J. Super. 232, 237 (1989) (determining that officer
could properly order occupants from lawfully stopped vehicle
after he observed passenger make movement as if to reach under
front seat); State v. Wanczyk,
201 N.J. Super. 258, 264 (1985)
(finding that officer had properly required the passenger, a
suspected arsonist, to alight from lawfully stopped vehicle);
State v. Anderson,
198 N.J. Super. 340, 351 (App. Div.), (holding
that all passengers could be ordered to step out of a lawfully
detained vehicle that was believed to contain participants in
armed robbery), certif. denied,
101 N.J. 283 (1985).
Although Conquest, Carter, Wanczyk, and Anderson extend the
principles of Mimms to passengers, the majority in Mimms rejected
the dissent's expansive reading of the Court's opinion, stating
that its holding is "only that once a motor vehicle has been
lawfully detailed [sic] for a traffic violation, the police
officers may order the driver to get out of the vehicle without
violating the Fourth Amendment's proscription against
unreasonable searches and seizures." Mimms, supra, 434 U.S. at
111 n.6, 98 S. Ct. at 333 n.6, 54 L. Ed.
2d at 337 n.6. Mimms,
does not address whether police officers may order passengers out
of a car legally stopped for a traffic violation. Subsequent to
Mimms, the Supreme Court has appeared to interpret Mimms to
include passengers. In Michigan v. Long, 463 U.S. l032, l047-48,
l
03 S. Ct. 3469, 3480,
77 L. Ed 2d l20l, 1218-1219 (l983), the
Court stated: "In Pennsylvania v. Mimms, we held that police may
order persons out of an automobile during a stop for a traffic
violation." (citation omitted)(emphasis added). And in his
concurrence in Rakas v. Illinois, 439 U.S. l28, l55 n.4,
99 S.
Ct. 42l, 436 n.4,
58 L. Ed.2d 387, 409 n.4 (l978), Justice
Powell stated that "[l]ast Term, this Court determined in
Pennsylvania v. Mimms that passengers in automobiles have no
Fourth Amendment right not to be ordered from their vehicle, once
a proper stop is made." (citation omitted).
Commentators and other courts have divided over whether a
distinction can properly be made between drivers and passengers.
A majority of jurisdictions that have considered the issue have
concluded that a passenger presents as significant a danger to
the safety of a police officer as a driver. In People v.
Martinez,
466 N.W.2d 380, 383-84 n.5 (Mich. Ct. App. l991),
appeal denied,
480 N.W.2d 106 (Mich.), vacated on reconsideration
by
483 N.W.2d 868 (Mich. l992), the court reasoned that because
the officer's attention is focused on the driver, passengers may
pose a greater threat to the officer than the driver poses. In
State v. Landry,
588 So.2d 345, 347 (La. l99l), which
specifically overruled State v. Williams,
366 So.2d 369 (La.
l988), the court held that ordering passengers out of a vehicle
placed them in the officer's view and "distanced [them] from
access to weapons." In State v. Ferrise,
269 N.W.2d 888, 890
(l978), the Minnesota Supreme Court asserted that "the Mimms
analysis would seem also to justify a policy of ordering
passengers out," because "[t]he same concern of the officers for
their own safety applies, and the intrusion on the rights of the
passengers occasioned by being required to get out of the car is
no greater than the intrusion on the rights of the driver." An
Illinois appeals court as well has found "more persuasive the
analysis that holds that the same concerns of the officers for
their safety that justify a policy regarding the driver similarly
justify ordering the passenger to get out of the vehicle."
People v. Salvator,
602 N.E.2d 953, 963 (l992), appeal denied,
610 N.E.2d 1273 (Table) (Ill. 1993).
Many jurisdictions have upheld an officer's order to a
passenger to step out of the vehicle. Doctor v. State,
573 So 2d l57, l59 (Fla. Dist. Ct. App. l99l), modified on other
grounds.,
596 So.2d 442 (Fla. l992); Warr v. State,
580 N.E.2d 265, 267 (Ind. Ct. App. l99l); People v. Robinson,
543 N.E.2d 733, 733-34 (N.Y.), cert. den.,
493 U.S. 966,
110 S. Ct. 411,
107 L. Ed.2d 376 (l989); People v. McLaurin, 5l
5 N.E.2d 904, 905-06
(N.Y. l987); People v. McFadden,
598 N.Y.S.2d 325, 326 (App. Div.
l993); People v. Tutt,
598 N.Y.S.2d 324, 325 (App. Div. l993);
People v. Livigni,
453 N.Y.S.2d 708, 709 (App. Div. 1982), aff'd
o.b.,
447 N.E.2d 78 (N.Y. l983); State v. Gilberts,
497 N.W.2d 93, 96 (N.D. l993); State v. Reynolds,
753 S.W 2d l, 2 (Mo. Ct.
App. l988); Bethea v. Commonwealth, 4l
9 S.E.2d 249, 252 (Va. Ct.
App. l992), aff'd,
429 S.E.2d 2ll (Va. l993).
In State v. Becker,
458 N.W.2d 604, 607 (Iowa l990), and
State v. Johnson, 60l S.W.2d 326, 327-28 (Tenn. Crim. App. l980),
however, the courts held that requiring passengers to exit the
vehicle was unconstitutional. Those courts specifically reject
the proposition that an officer making a lawful stop can order
all the occupants to alight from the car simply to "check" on
them without any individualized suspicion of criminal behavior or
of their dangerousness. Professor LaFave cites with approval the
lower court concurrence opinion in Mimms, which distinguishes
passengers and drivers. That opinion stated that "`an operator's
expectation of privacy differs from that of an occupant of a
vehicle detained for a traffic violation,' as the driver is
detained for some violation by him or the car he is driving,
while the detention of the passengers is no more than an
inevitable incident of the stopping of the car." Wayne LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a),
at 5l4-l5 (2d ed. 1987) (quoting Commonwealth v. Mimms, 370 A.2d
ll57, 1161 (Pa.) (Nix, J., concurring), rev'd, Mimms, supra, 434
U.S. l06,
98 S. Ct. 330,
54 L. Ed.2d 331). Professor LaFave
urges a novel solution that "the potential danger to police
engaged in traffic enforcement could be adequately met if the
police allowed passengers to remain in the stopped vehicle and
instead had the driver accompany them to the police vehicle while
the citation is prepared." Id. at § 9.4(a) at 5l5.
Today we decide whether, and under what conditions, Mimms
should be extended to passengers. We apply the balancing test
required by the State and Federal Constitutions. The touchstone
of a court's analysis under the Fourth Amendment is, as always,
"`the reasonableness in all the circumstances of the particular
governmental invasion of a citizen's personal security.'" Mimms,
supra, 434 U.S. at l09, 98 S. Ct. at 332, 54 L. Ed.
2d at 335
(quoting Terry, supra, 392 U.S. at l9, 88 S. Ct. at 1878-79, 20
L. Ed.
2d at 904).
First, we look, as did the Supreme Court in Mimms, to that
side of the balance that bears on the officer's safety. 434 U.S.
at l09, 98 S. Ct. at 332, 54 L. Ed.
2d at 336. Certainly, the
concerns raised by Mimms about the officer's safety are as
relevant now as they were in l977. Indeed, they probably are
more relevant. To quote Mimms, supra:
[T]he State's proffered justification - the
safety of the officer - is both legitimate
and weighty. "Certainly it would be
unreasonable to require that police officers
take unnecessary risks in the performance of
their duties." Terry v. Ohio, supra, [392
U.S.] at 23,
20 L. Ed.2d 889,
88 S. Ct. 1868,
44 Ohio Ops.2d 383. And we have
specifically recognized the inordinate risk
confronting an officer as he approaches a
person seated in an automobile.
[434 U.S. at ll0, 98 S. Ct. at 333,
54 L. Ed.
2d at 336-37].
According to recent statistics in the Uniform Crime Reports: State of New Jersey at 183 (l992), 373 assaults on New Jersey police officers occurred during traffic stops in l992; that constituted 9" of all assaults on officers. The l992 report indicates that seventeen percent of assaults on police occurred between midnight and 2:00 a.m. Id. at 180. Another study concluded that police homicides are more frequent in urban areas, and involve an officer who is performing a duty on a street or a
highway. Albert P. Cardarelli, An Analysis of Police Killed By
Criminal Action: 1961-1963, 59 J. Crim. Law, Criminology &
Police Sci., 447, 448-449, 450 (l968). The State resorts to
those facts to establish that the practice of ordering all the
occupants out of a car stopped for a motor vehicle offense is a
reasonable precautionary measure. The safety concerns of a
police officer unquestionably merit grave consideration.
We turn now to the second prong of the Mimms analysis and
weigh the intrusion into the passenger's liberty occasioned by
the trooper's order to a passenger to get out of the car as a
routine safety precaution. Ordering a passenger to leave the
vehicle is distinguishable from ordering the driver to get out of
the vehicle because the passenger has not engaged in the culpable
conduct that resulted in the vehicle's stop. Although the
State's interest in safety remains the same whether the driver or
the passenger is involved, requiring a passenger to alight from a
car in the course of a routine traffic stop represents a greater
intrusion on a passenger's liberty than the same requirement does
on a driver's liberty. With respect to the passenger, the only
justification for the intrusion on the passenger's privacy is the
untimely association with the driver on the day the driver is
observed committing a traffic violation. Because the passenger
has not engaged in culpable conduct, the passenger has a
legitimate expectation that no further inconvenience will be
occasioned by any intrusions beyond the delay caused by the
lawful stop. The intrusion on the passenger's privacy,
therefore, is greater than it is on the driver's privacy. Some
jurisdictions have recognized that distinction. E.g., Becker,
supra, 458 N.W.
2d at 607; Commonwealth v. Elliott,
546 A.2d 654,
660 (Pa. Super. Ct. 1988), appeal denied,
557 A.2d 721 (Pa.
1989), appeal denied sub nom. Appeal of Elliot,
557 A.2d 724 (Pa.
1989); Johnson, supra, 601 S.W.
2d at 327-28.
The State asserts, however, that like the driver, the
passenger is being asked to expose very little more of the body
than is already exposed. The police have already lawfully
decided to detain briefly the driver and vehicle; the only
question is whether the passenger shall spend that period sitting
in the passenger seat or standing outside the vehicle. As Mimms
concluded,
Not only is the insistence of the police on
the latter choice not a "serious intrusion
upon the sanctity of the person," but it
hardly rises to the level of a "'petty
indignity.'" Terry v. Ohio, supra, [392
U.S.] at 17, 88 S. Ct. [at 1877],
20 L. Ed 2d [at 903]. What is at most a mere
inconvenience cannot prevail when balanced
against legitimate concerns for the officer's
safety.
[434 U.S. at lll, 98 S. Ct. at
333, 54 L. Ed.
2d at 337 (footnote
omitted).]
Moreover, the State argues the passenger's expectation of
privacy in a car is not significantly different from the
driver's. Every automobile occupant's expectation of privacy in
a car is less than the expectation of the occupants of a home.
Cardwell v. Lewis,
417 U.S. 583, 590,
94 S. Ct. 2464, 2469,
41 L.
Ed.2d 325, 335 (1974); State v. Reldan,
100 N.J. 187, 197
(1985). Further, the primary concern of the Mimms rule -
officer protection -- remains the same whether a passenger or a
driver is involved.
Many of the State's arguments have merit. Applying the
balancing test to passengers, however, we conclude that the scale
tips against a per se rule that a passenger may always be ordered
out of a vehicle lawfully stopped for a routine traffic
violation. Courts have long held that some quantum of
individualized suspicion is a prerequisite to a constitutional
search and seizure. Terry, supra, 392 U.S. at 21 n.18, 88 S. Ct.
at 1880 n.18, 20 L. Ed.
2d at 906 n.18 (citing U.S. Supreme Court
cases extending back to 1878); see Lund, supra, 119 N.J. at 48;
State v. Thomas,
110 N.J. 673, 685 (1988); Davis, supra, 104 N.J.
at 504 (adopting requirement for individualized suspicion).
Although we do not think that a passenger being routinely asked
to step out of a lawfully detained vehicle suffers a major
intrusion, the request nevertheless amounts to an intrusion.
Therefore, we do not think reasonable the proposition that auto
passengers should be routinely ordered to get out of their cars
after ordinary traffic stops.
Hence, we conclude that the Mimms per se rule should not be
applied automatically to passengers. We do recognize, however,
that instances will surface in which police officers, with less
than a reasonable suspicion that a passenger is engaged in
criminal activity or is armed and dangerous, may reasonably order
a passenger to step out of the car. Indeed, we are satisfied
that Officer Gacina had sufficient cause to ask Muhammad to get
out of the car.
What circumstances will permit an officer to order a passenger from an automobile after a traffic stop is an issue of first impression before this Court. The Appellate Division did confront that issue, however, in Conquest, supra, 243 N.J. Super. 528. The issue there was "whether it was constitutionally permissible for [a trooper] to order [a passenger] out of the car after he observed her bend over to the floor while [the trooper] was dealing with [the driver]." Id. at 53l. The trooper had pulled the car over after having seen it go through a stop sign and make a turn without using its directional signals. The driver stepped out of the vehicle and approached the trooper's car, offering his driving credentials. As the driver was producing his papers, the trooper noticed the passenger "bend out of sight for approximately three seconds towards the driver's side of the vehicle." Id. at 530.
The trooper, after patting down the driver, walked to the car, ordered the passenger to get out, and opened the passenger-side door. Id. at 530. As the passenger was stepping out, the trooper saw a vial on the floor, which the officer correctly identified as filled with crack. Ibid.
The Appellate Division found that the trooper's order to the passenger to exit the vehicle was objectively reasonable. The court, basing its holding on Mimms, emphasized its concern for
the officer's safety, the fact that the trooper was alone, and
the conclusion that the driver and passenger had acted
suspiciously. Id. at 532-33. The court noted that "the
questioned intrusion [being asked to alight from the vehicle]
involved less than a vehicle or body search, and even the
propriety of the pat-downs is not implicated in this suppression
motion." Id. at 533.
Although the per se rule under Mimms permits an officer to
order the driver out of a vehicle incident to a lawful stop for a
traffic violation, we decline to extend that per se rule to
passengers. Instead, we determine that an officer must be able
to point to specific and articulable facts that would warrant
heightened caution to justify ordering the occupants to step out
of a vehicle detained for a traffic violation.
Although the requirements for ordering a passenger from a
vehicle are more stringent than those for ordering a driver out
under the Mimms per se rule, the standard that justifies an order
to a passenger to step out of a vehicle does not rise to the
Terry standard that must be met for a protective pat-down. We
adopt this lesser standard because of the need to protect police
officers and because of the minimal intrusion the requirement to
exit the car imposes on the passenger.
To support an order to a passenger to alight from a vehicle
stopped for a traffic violation, therefore, the officer need not
point to specific facts that the occupants are "armed and
dangerous." Rather, the officer need point only to some fact or
facts in the totality of the circumstances that would create in a
police officer a heightened awareness of danger that would
warrant an objectively reasonable officer in securing the scene
in a more effective manner by ordering the passenger to alight
from the car.
In contrast, to justify a pat-down of an occupant once
alighted from a vehicle, specific, articulable facts must
demonstrate that a "reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of
others was in danger." Terry, supra, 392 U.S. at 27, 88 S. Ct.
at 1883, 20 L. Ed.
2d at 909. A "hunch" forms an insufficient
basis on which to conduct the uncomfortable and often
embarrassing invasion of privacy that occurs in a pat-down of a
person's body. Ibid.
In this one respect, the Terry standard and the standard for
ordering a passenger out of a car are the same. To determine
whether a passenger may be ordered from a vehicle, we likewise
reject the proposition that such an intrusion will be justified
solely because of an officer's "hunch." Rather, the officer must
be able to articulate specific reasons why the person's gestures
or other circumstances caused the officer to expect more danger
from this traffic stop than from other routine traffic stops.
We conclude that Trooper Gacina's order was objectively
reasonable. Although the vehicle pulled to the side of the road
in a reasonable time, the movements of the passengers in the car
reasonably aroused Trooper Gacina's suspicions. Had the vehicle
pulled to the side of the road without incident, the trooper
would have had no basis for requiring the passenger to step out
of the car. Here, however, Trooper Gacina witnessed the apparent
passing of objects between the front and back seats. Gacina
testified that while following the car as it pulled to the
shoulder, he "did not have a view of the most important thing
that [he] needed to have a view of; and that is [the occupants']
hands."
Thus the unusual movements, the early morning hour, and a
largely deserted Turnpike are facts that warrant proceeding with
extra caution in handling the occupants of the vehicle. The
suspicious behavior by the occupants permitted the officer to
exercise increased care to secure the scene even though the order
that the passenger step out of the vehicle involved some
intrusion on the passenger. That intrusion on the passenger's
privacy interest is justified, however, because the suspicious
movements in the car warranted a reasonably prudent officer's
belief that the occupants of the car might be armed. Trooper
Gacina thought that he would best be able to control the scene if
each of the passengers stepped out of the vehicle and remained in
complete view of the officers. Those circumstances were
sufficient to justify Trooper Gacina's exercise of heightened
caution in ordering Muhammad to step out of the car.
We now turn to whether the pat-down of Muhammad was valid under the Terry test of "whether a reasonably prudent man
[Trooper Gacina] in the circumstances would be warranted in the
belief that his safety or that of others was in danger." 392
U.S. at 27, 88 S. Ct. at 1880, 20 L. Ed.
2d at 889.
In some cases the facts that permit the officer to order the
passenger to alight, with nothing more, may justify both the
order to get out of the vehicle and the pat-down. Lund, supra,
1l9 N.J. at 45-46. That was not so in this case. This Court,
however, has recognized that "events occurring subsequent to a
permissible investigatory stop may give rise to an objectively
credible suspicion that the suspect is armed." Lund, supra, 119
N.J. at 46. As both the trial court and the Appellate Division
in Muhammad recognized, we must focus on the point at which
Muhammad was searched to determine whether Trooper Gacina
objectively realized that his safety and that of his partner were
in danger. Thomas, supra, 110 N.J. at 677 (holding that test is
whether "record contains sufficient evidence of objective
criteria to support the search of defendant"); State v. Bruzzese,
94 N.J. 210, 219 (1983), (determining constitutionality of
seizure by "objectively reasonable" standard), cert. denied,
465 U.S. 1030,
104 S. Ct. 1295,
79 L. Ed.2d 695 (1984) .
Certainly, we do not endorse an officer's announcement of
his or her intention to conduct a pat-down before sufficient
facts exist to warrant that invasion of privacy. By the same
token, however, unless the circumstances are particularly
egregious, the premature announcement should not leave the
officer powerless should sufficient facts later come to light
that would permit a constitutional frisk of the vehicle's
occupant. The lack of a bright-line rule in stop-and-frisk cases
places police officers in a precarious position. Sometimes in a
matter of seconds, an officer must determine whether a protective
pat-down is necessary to secure his or her safety. State v.
Brown,
160 N.J. Super. 227 (Law Div. 1978). In Lund, supra, 119
N.J. at 49, we stated, "We know how hard it is for an officer on
patrol to make split-second decisions that have to be analyzed
months, if not years, later on a constitutional dimension."
Thus we determine that the premature announcement of an
intent to perform a pat-down does not debilitate the officer so
that he will not later be able to perform a pat-down should
sufficient facts come to light. After Muhammad left the vehicle,
she was nervous and crying; she engaged in a prolonged stare with
Smith, the driver; the trooper noticed the bulge beneath her
blouse; and Muhammad exclaimed, "It's not mine, they made me put
it in there." Those facts, when considered in the totality of
the circumstances, were sufficient to support a reasonable,
articulable suspicion that Muhammad was armed and dangerous.
Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed.
2d at
906. Indeed, a bulge alone has been held sufficient to validate
a protective pat-down. E.g., Mimms, 434 U.S. at 111-12, 98 S.
Ct. at 334, 45 L. Ed.
2d at 337-38; Wanczyk, supra, 201 N.J.
Super. at 264 ("Once defendant stepped out of the car and the
police observed the bulge in the left sleeve of defendant's
jacket, the officers unquestionably had the right to conduct a
frisk of the defendant under the principles pronounced in Terry
v. Ohio, supra.").
We therefore affirm the Appellate Division in Muhammad's
appeal, reverse the Appellate Division in Smith's appeal, and
reinstate the judgment of the trial court.
Chief Justice Wilentz and Justices Clifford, Handler,
Pollock, O'Hern, and Stein join in this opinion.