Posted on January 24, 2008 by Travis Tormey

Orders to Exit Vehicles: Passengers (Part 2)

Central to the court's analysis in State v. Smith, 134 N.J. 599 (1994), was the fact that normally a passenger will not have committed any motor vehicle violation. Of course, this may not always be the case. There are numerous violations that passengers can commit. For example, failure to wear a seatbelt while seated in the front of a motor vehicle constitutes a violation of New Jersey law. In a similar manner, passengers may be liable under the motor vehicle laws when they, as licensed drivers, permit the operation of a motor vehicle by a person under the age of 17 with an examination permit. Passengers can also be liable for permitting intoxicated drivers to operate a motor vehicle that is either owned or within the custody or control of the passenger. In fact, a passenger who permits his or her motor vehicle to be operated without liability insurance is strictly liable under the state's compulsory insurance laws.

In those cases in which the passenger has actually committed a motor vehicle offense themselves, it seems that the investigating officer has the power to lawfully order them to exit the vehicle under the Mimms analysis. This was the holding in State v. Legette. This was decided three months after the New Jersey Supreme Court's decision in Smith, and the court decided that the police could order a passenger to exit a vehicle where he was about to receive a ticket for failure to wear a seatbelt. State v. Legette, 274 N.J. Super 278 (1994). Under the court's reasoning in Legette, a police officer may order passengers to exit a vehicle whenever the passenger has independently violated a provision of the motor vehicle or criminal laws.

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Posted on January 23, 2008 by Travis Tormey

Orders to Exit Vehicles: Passengers

The New Jersey Supreme Court considered whether the Mimms rule applied to passengers in New Jersey as well in State v. Smith, 134 N.J. 599 (1994). The Court found that ordering a passenger out of a vehicle is different from ordering a driver to get out of the vehicle because the passenger has not engaged in the culpable conduct that resulted in the vehicle stop. The court found that an order to exit a vehicle during the course of a routine motor vehicle stop constitutes a greater intrusion on the passenger's liberty than on the driver's. Because the passenger has not normally engaged in an obvious violation of the law, he or she has a legitimate expectation that no further inconvenience will occur other than the delay of a lawful stop of a driver. Accordingly, the court recognized a distinction between the privacy expectations of passengers and drivers and found that the passenger's privacy interest is greater than that of the driver. The Court ruled that in order for an officer to require a passenger to exit a motor vehicle during a lawful stop, the officer must be able to identify specific and articulable facts that would warrant heightened caution to justify ordering passengers out of a vehicle detained for a traffic stop. The officer needs to establish some facts considered in the totality of the circumstances that would create a heightened awareness of danger for the officer.
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Posted on January 23, 2008 by Travis Tormey

Orders to Exit Vehicles: Drivers

There is a distinction in New Jersey between orders by a law enforcement officer for operators and passengers of a vehicle to exit the vehicle during a motor vehicle stop. With respect to operators of a motor vehicle, New Jersey follows the federal position that police are free to use their discretion to order a driver from the vehicle during the course of a motor vehicle stop. This comes from the federal case of Pennsylvania v. Mimms, 434 U.S. 106 (1977). Critical to this United States Supreme Court decision is the concerns for issues of officer safety during traffic stops. Weighing the potential for death or bodily injury to police during traffic stops against the inconvenience to motorists, the court found that the intrusion can only be described as de minimis (minimal). Essentially, this decision creates a bright line rule that police may require drivers to exit their vehicles during a motor vehicle stop without any justification.

With respect to drivers, the New Jersey Supreme Court has found this decision to be consistent with the New Jersey Constitution. In State v. Smith, the court that that the Mimms test is constitutional under the New Jersey Constitution. State v. Smith, 134 N.J. 599 (1994). The Court adopted the reasoning of the USSC and found that, in contrast to the minimal intrustion on a person's privacy, a police officer's safety is greatly enhanced when an officer can order a driver out of the car.

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