By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from a chief in Pennsylvania. Everyone teaches that you can order occupants out of a lawfully stopped car. Nobody teaches what you do when the passenger simply says no.
What crime do you charge when a passenger will not exit?
Hello everyone, it’s Anthony Bandiero here, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you the roadside chat.
Let’s talk about a question that comes from Pennsylvania. All right, so it’s actually a chief from Pennsylvania, so very good question here. So, what crime are we going to charge if a passenger refuses to exit a vehicle?
These questions relate to Pennsylvania versus Mimms and Maryland versus Wilson. This is what my chief is telling me. In Pennsylvania, if we have lawfully stopped a vehicle and we order an occupant out of the vehicle and they refuse, what is the recourse? Assume the person is not under arrest, just detained in a typical traffic stop. I always hear police are allowed to order the persons out, but never really what to do if they refuse. I guess we would charge them with resisting arrest or other law enforcement or obstruction laws may apply, but I’m not sure since I have not seen this before.
Can you order a passenger out without any extra articulation?
All right, so my chief definitely has given us some good case law so far, and we know that the cases are the Supreme Court extending a bright line rule, meaning it is black and white, cops, you can do it, you don’t need any extra articulation, to allow the officer to order any passenger out of a vehicle as a matter of course. This is Maryland versus Wilson, Supreme Court 1997. Pennsylvania versus Mimms is applying to the driver, that’s going to be a lot easier I think.
Also, an officer may order all of the occupants to remain in the car with their hands up. That is United States versus Moorefield, Third Circuit 1997. So these are two cases that obviously directly apply to our chief in Pennsylvania.
Why is there almost no case law on this?
I want you to know, I’ve never ever, in over 20 years, I’ve never seen a case involving arresting a passenger for refusing to get out of the car. I just haven’t seen it.
That’s good news. That could mean that, well first of all, A, it doesn’t happen often. As a retired law enforcement officer, I’ve never had anybody refuse to get out of a car when I told them to get out of the car. But also, B, it could also mean that there’s not a lot of case on it because the courts see it as a pretty bright line issue. Like, hey, the officer told you out of the car, you didn’t get out of the car, therefore the consequences, arrest, citation, whatever.
And maybe lawyers are not really litigating this because the lawyer would tell the passenger, hey, just so you know, you’re going to try to sue the officer for arresting you for not getting out of the car, you have to get out of the car, the Supreme Court said this back in 1997. So that’s probably why we just don’t see a lot of cases. It just doesn’t get litigated.
Now in my world, I don’t see the arrest so much. The arrests are not going to get on the radar. It’s going to be the appeal, it’s going to be the lawsuit for alleging that the cop violated the passenger’s Fourth Amendment rights to be free of unreasonable search and seizure.
So is refusing a lawful order obstruction?
So going back to the ultimate question, what do we do? Well, it’s going to come down to obstruction. Obstruction generally means, are you giving a lawful order? Absolutely, without a doubt. If you tell a passenger to get out of the car and they refuse, was that a lawful order? Yes. Maryland versus Wilson. Are they refusing that lawful order? Yes. That is obstruction.
However, let’s think this through. Okay, let’s just think this through.
Is the juice worth the squeeze on a passenger who will not move?
You’re probably going to have to use force on this person. If they’re just being that kind of person and they’re saying, you know what, I’m not doing anything wrong, my hands are in plain view, you can see my hands, I’m not armed and dangerous, I’m minding my own business, my biggest crime officer is picking this guy as the driver because he likes to go too fast, that’s my crime, but you can’t cite me for that, and all I’m saying to you officer is I simply do not want to get out of the car, so leave me alone, go back to the driver, finish business with him or her and let’s go, let me be on my way.
What are you going to do? What is the best course of action? Are you going to use force against this person and rip them out of the car, arrest them, potentially somebody gets hurt, probably them? And then you’re going to go to court and they’re going to ask you, hey, this is a lot to do about nothing. I understand that you can get this person out, but this obviously turned into a big event here. Why did you want the person to get out of the car? Was there any reason? Was there any safety rationale? Anything about the logistics of doing your investigation? Did you have to get into the car for a lawful reason, like a protective sweep?
And the cop says, no your honor, but as I said, Maryland versus Wilson, can I be any more clear on that? The court says it’s a bright line rule your honor, and what I say goes.
Is that going to be our articulation in court? Because if it is, I think you probably shouldn’t do it. It probably should be, if you have nothing, absolutely nothing, no reason to pull that passenger out, then you just want to make it more convenient for you, and maybe that’s a good enough reason. But if you have nothing legit, then I say maybe the juice is not worth the squeeze.
But if you are saying, Anthony, no, look, I have a reason, the driver’s story is not matching up, I believe that they may be involved in some kind of criminal activity, the guy has hidden his hands from me, he won’t show me, I told him to keep his hands on the dashboard, he’s not doing it, he’s looking around in all places like he’s looking to maybe jump in the driver’s seat and take off, or he has a criminal history and I want to keep an eye on him, etc, etc, etc. If you have, quite frankly, any reason that sounds legit, then that’s the case that I would want to go to court on.
What does the Gant articulation teach us here?
I just wouldn’t want to go to court on the cop who, quite frankly, would sound like the cop that was in the Arizona versus Gant case, where he searched Gant’s car after arresting him for no license and a warrant. You know, back in the day we could usually just search cars as a matter of routine after you arrest somebody. But he went to court and he was asked on the stand, hey officer, why did you search Gant’s car, simply arresting him for no license and a warrant, even though the car was going to be parked, it was not going to be towed? And he said, and I quote, because the law says we can do it.
And when that articulation went to the US Supreme Court, they said, you know what, that’s not what we really meant here, when we had the Belton rule and you took us to mean that you could search cars as a matter of routine just because you arrested somebody from it, that’s not really what we meant. And quite frankly I think that is what they meant. But the point is, when the cop opened the door to that criticism by saying things like the law says I can do it, that’s when we get bad case law.
The short version
- Maryland versus Wilson, Supreme Court 1997, lets you order any passenger out as a matter of course. No extra articulation required.
- Mimms is the driver case and that one is easier.
- United States versus Moorefield, Third Circuit 1997, lets you order all occupants to stay in the car with their hands up.
- In over 20 years I have never seen a case on arresting a passenger for refusing to exit.
- That probably means it rarely happens, and that plaintiffs’ lawyers know it’s a loser.
- Refusing a lawful order is obstruction. Hit them with it if they do not comply.
- But before you put hands on somebody, ask what you are going to tell your chief beyond “the law says I can.”
- If you have a real reason, hands hidden, story not matching, criminal history, that’s the case you want to go to court on.
- If you have nothing, maybe that’s the day you just move on.
- The cop in Gant is the cautionary tale. “Because the law says we can do it” is how you get bad case law.
So here is the takeaway. I have never seen a case on this issue, again I told you why, it probably is mostly going to be a loser for any plaintiff. However, before you put hands on a citizen and potentially use force to pull them out of that car, ask yourself why. What am I going to tell my bosses at work, what am I going to tell my chief, something more than because the law says I can do it. If you have a reason, I think you’re going to be just fine, hit them with obstruction if they do not do it. But if you got nothing, maybe that’s the day just move on.
If you found this useful, you know what to do. Until next time, my friends, you stay safe.
Related from Blue to Gold
- Are Passengers Allowed to Leave The Traffic Stop?
- Ordering Hidden Occupants Out of A Vehicle
- Can You Order a Driver to Roll Down Their Window?
This article is an edited transcript of Roadside Chat Ep #632. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
