By David Daggett

It seems like it was just yesterday that I wrote Blog #1 and now here I am on #50. I look back on some of those early ones and ask myself, “You attached your name to that!?!” Many of you probably look at most of them and think the same thing. Fair enough, but be that as it may, it’s that time again.

I was recently asked a question pertaining to traffic stops and what authority law enforcement officers have over passengers. I figured if one agency raised the question, there might be some misunderstanding of the law in other jurisdictions as well.

Case Law

Back in 1996, in the case of Dennis v. State, 342 Md. 196 (1996), the Maryland Court of Appeals held that in order to justify detaining the passenger after a traffic stop, the officer must have a reasonable suspicion that the passenger was engaged in criminal behavior and the officer must have intended to conduct further investigation based on that suspicion.

Dennis involved a Princess Anne Police Department officer who saw a vehicle drive through a red traffic signal. Intending to make a traffic stop, the officer and his partner pursued the vehicle with emergency lights flashing. The driver of the pursued vehicle ignored the lights and increased his speed. The officers then shined a flashlight into the vehicle and told the driver to pull over. The driver ignored this command as well and again increased his speed. Eventually, the driver pulled the vehicle into a driveway in a residential neighborhood where five or six persons were congregated. At that point both the driver and the petitioner attempted to exit the vehicle. When the petitioner/passenger (Dennis) opened the passenger side door, the officer told him to shut the car door and stay in the vehicle. Instead, Dennis stepped out of the vehicle and, ignoring a command to get back into the vehicle, began walking away. He was ordered to stop but failed to do so.

While this was going on, there were several subjects in the yard who were yelling at the officers and saying things to Dennis and the driver. Confronted with the petitioner’s continued resistance to his commands, the officer proceeded to take him to the ground. Dennis then struck the officer in the ribs with his elbow and began fighting with him. After spraying the petitioner twice with pepper mace, the officer finally got him back in the car. Apparently, this was just another routine traffic stop in Princess Anne.

Dennis was convicted of disorderly conduct and battery. The Court of Appeals spent the majority of the opinion on whether Dennis’ actions amounted to disorderly conduct and whether he had the right to resist an unlawful arrest, but for purposes of this discussion, the pertinent part of the opinion was that, in order to justify detaining the passenger after a traffic stop, the officer must have a reasonable suspicion that the passenger was engaged in criminal behavior and the officer must have intended to conduct further investigation based on that suspicion. Interestingly, one of the cases the Dennis Court relied upon in its holding was State v. Wilson, 106 Md. App. 24 (1995), which as we will soon see, was overturned by the United States’ Supreme Court.

Pennsylvania v. Mimms, 434 U.S. 106 (1977)

Two police officers stopped a vehicle being driven by Mimms for having an expired license plate. They stopped the vehicle and asked Mimms to step out of the car and produce his license. Upon exiting the vehicle, one officer noticed a large bulge under his sports jacket. Fearing that the bulge may be a weapon, the officer conducted a “pat down” search and discovered a revolver in Mimms’ waistband.

Upon a grant of certiorari, the Supreme Court reversed the judgment of the state supreme court. The Supreme Court found that Mimms was legitimately stopped by the police in order for them to issue him a traffic summons. The fact that respondent was ordered out of his car was only a de minimis intrusion on his freedom. The police had already decided to briefly detain respondent, whether it was inside or outside of the car was irrelevant. The Supreme Court determined that the police officer was justified in conducting a limited search of respondent’s person for weapons once he had a reasonably articulable suspicion that Mimms, who had been legitimately stopped, might be armed. Having no further appeals, Mimms was mum.

Mimms clearly allows for police officers, upon making a valid traffic stop, to order the driver out of the vehicle. I know, you’re wondering why I’m boring you with a case about a driver, this is supposed to be about passengers. We’re getting there.

Maryland v. Wilson, 117 S. Ct. 882 (1997)

Wilson was a front-seat passenger in a car stopped by a state trooper for a traffic violation. The trooper ordered Wilson out of the car. Upon exiting the vehicle, a quantity of crack cocaine fell to the ground. Prior to his trial for possession of cocaine with intent to distribute, Wilson moved to suppress the evidence, arguing that the trooper’s ordering him to exit constituted an unreasonable seizure under the Fourth Amendment. The Maryland Court of Special Appeals ultimately agreed with Wilson that the general rule that police officers may order a driver to get out of the vehicle (Mimms) without violating the Fourth Amendment’s proscription against unreasonable seizures did not extend to passengers. The Maryland Attorney General’s Office requested cert and the Supreme Court of the United States, after applying a test that balanced the public interest versus the individual’s right to personal security free from arbitrary interference by law officers, determined that the Mimms rule extended to passengers.

The Court made clear in Wilson that control over the traffic stop was an officer safety issue. Wilson was decided after the previously mentioned case of Dennis v. State.

The Supreme Court applicable balancing test of officer safety vs. personal liberty resulted in the following holding:

We must therefore now decide whether the rule of Mimms applies to passengers as well as to drivers. On the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger. Regrettably, traffic stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops. Federal Bureau of Investigation, Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted. In the case of passengers, the danger of the officer’s standing in the path of oncoming traffic would not be present except in the case of a passenger in the left rear seat, but the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.

On the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers. But as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver.

The Court cited the case of Michigan v. Summers, 452 U.S. 692 (1981), as offering guidance by analogy. In Summers, the police had obtained a search warrant for contraband thought to be located in a residence, but when they arrived to execute the warrant they found Summers coming down the front steps. The question in the case depended “upon a determination whether the officers had the authority to require him to re-enter the house and to remain there while they conducted their search.” 452 U.S. @ 695.

In holding as it did, the Court said:

Although no special danger to the police is suggested by the evidence in this record, the execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation. 452 U.S. at 702-703

The Court, in summary, opined that:

(T)he danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

For extra clarity, it is instructive to look at the dissenting opinions of Justice’s Stevens and Kennedy:

Justice Stevens expressed his dissent thusly:

My concern is not with the ultimate disposition of this particular case, but rather with the literally millions of other cases that will be affected by the rule the Court announces. Though the question is not before us, I am satisfied that–under the rationale of Terry v. Ohio – If a police officer conducting a traffic stop has an articulable suspicion of possible danger, the officer may order passengers to exit the vehicle as a defensive tactic without running afoul of the Fourth Amendment. Accordingly, I assume that the facts recited in the majority’s opinion provided a valid justification for this officer’s order commanding the passengers to get out of this vehicle. But the Court’s ruling goes much further. It applies equally to traffic stops in which there is not even a scintilla of evidence of any potential risk to the police officer. @ p. 887

Justice Kennedy opined:

Traffic stops, even for minor violations, can take upwards of 30 minutes. When an officer commands passengers innocent of any violation to leave the vehicle and stand by the side of the road in full view of the public, the seizure is serious, not trivial. As Justice Stevens concludes, the command to exit ought not to be given unless there are objective circumstances making it reasonable for the officer to issue the order. @ p. 890

The dissents clearly point out that the majority opinion applies to passengers, whether or not there is any evidence that the passenger is involved in any illegal activity, as indicated by the language, “obviously innocent citizens.”

Brendlin v. California, 551 U.S. 249 (2007)

While Brendlin primarily stands for the proposition that a passenger has standing to object to an unconstitutional traffic stop, there is also vital language regarding the topic at hand.

It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997), we held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. Id., at 414-415, 117 S. Ct. 882; Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, (1977) (per curiam) (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that “

[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Wilson, supra, at 414, 117 S. Ct. 882, (quoting Michigan v. Summers, 452 U.S. 692, 702-703, 101 S. Ct. 2587 (1981)).

What we have said in these opinions probably reflects a societal expectation of “unquestioned [police] command” at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. Wilson, supra, at 414, 117 S. Ct. 882.

Arizona v. Johnson, 129 S. Ct. 781 (2009)

While patrolling near a Tucson neighborhood associated with the Crips gang, police officers from Arizona’s gang task force stopped an automobile for a vehicular infraction warranting a citation. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Johnson, the back-seat passenger, exhibited behavior and was wearing clothing that caused the officer to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, the officer asked him to get out of the car in order to question him further. Because the officer suspected that Johnson was armed, a pat down was conducted on Johnson when he exited the car. During the pat down, the officer felt the butt of a gun. Johnson was charged with the illegal possession of a firearm.

The trial court denied his motion to suppress the evidence, concluding that the stop was lawful and that the officer had a reasonable suspicion that Johnson was armed and dangerous. Johnson was convicted. The Arizona Court of Appeals reversed, determining that while Johnson was lawfully seized, the court found that, prior to the frisk, the detention had evolved into a consensual conversation about his gang affiliation. The court concluded that the officer had no right to pat Johnson down even if she had reason to suspect he was armed and dangerous. ????! The Arizona Supreme Court denied review. ????! The United States’ Supreme Court took cert.

The SCOTUS navigated the stop step by step: that a lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation; that the temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop; that normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave; and that an officer’s inquiries into matters unrelated to the justification for the traffic stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.

What the SCOTUS made clear in Johnson, as relevant to this discussion, was that, for the duration of a traffic stop, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers and held that:

(I)n a traffic-stop setting, the first Terry condition–a lawful investigatory stop–is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. @ 784 …Officer Trevizo surely was not constitutionally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.”

Now, it is clear that in order to justify a pat down of the driver or a passenger during a traffic stop, just as in the case of a pedestrian reasonably suspected of criminal activity under Terry v. Ohio, the police must have a reasonable suspicion that the person subjected to the frisk is armed and dangerous. The Maryland Court of Appeals also made that abundantly clear in its recent opinion in Norman v. State, No. 56, September Term, 2016, issued March 27, 2017.

Henderson v. State, 416 Md. 125 (2010)

Henderson was a Maryland Court of Appeals opinion regarding the continued detention of passengers after the investigation of the driver had been concluded. Henderson was a passenger in a vehicle being driven by Mr. Lewis. The vehicle had been stopped for failing to come to a complete stop at a stop sign. Lewis was ultimately arrested for CDS violations, at which time the passengers had not been suspected of any criminal activity. The passengers, including Henderson, were detained beyond the point of Lewis’ arrest pending the arrival of a narcotics canine. The Court determined that there was not reasonable articulable suspicion to justify the continued detention of the passengers past the point of Lewis’ arrest as at that point the police knew that (1) no drugs had been seized during the search of Mr. Lewis’s person; (2) no “open” warrants justified the arrest of the passengers; and (3) the Kia owned by Henderson’s mother had not been reported stolen. The Court held that the deputies did not have reasonable articulable suspicion to further detain Petitioner pending the arrival of the K-9 unit.

The Court made clear that Henderson was “detained” from the moment that the deputy made a forcible stop of Lewis’ vehicle. The relevant language for purposes of this discussion (as cited by the Maryland Court of Appeals) came from Arizona v. Johnson, 129 S. Ct. 781 (2009):

The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. …In sum, as stated in Brendlin, a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. Henderson @ 145

Hicks v. State, 189 Md. App. 112 (2007)

On April 25, 2007, two officers of the Prince George’s County Police Department, were working a special assignment in Oxon Hill. About 11:02 p.m., the officers observed a blue four-door sedan parked at the gas pumps of a Shell gas station located at Wheeler Road and Southern Avenue. Two people were in the vehicle: the driver, later identified as Milton Lee Jennings, and the appellant (Hicks), who was seated in the front passenger seat. The vehicle was not running, its lights were off, and the occupants were not pumping gasoline. The officers observed the vehicle and its occupants, who remained sitting in the car, for about 15 minutes. One officer then observed Jennings   get out of the vehicle and saw another person approach him, conducting what appeared to be a hand to hand CDS transaction.

After observing the “hand to hand,” one officer approached the vehicle and asked Jennings what they were doing and “what did you just exchange with the gentleman that walked away?” Jennings was then ordered to produce identification, and to get out of the vehicle. The officer then conducted a pat down of Jennings for “officer safety.” Nothing was found. The other officer ordered Hicks out of the vehicle and as the officer attempted a pat down, Hicks resisted. The defense relied on the Dennis holding regarding resisting an unlawful order.

The Court of Special Appeals determined the following:

Appellant’s reliance on Dennis v. State, 342 Md. 196 (1996) for the proposition that appellant was free to depart the scene without permission from the police officers is…misplaced. In Dennis, the defendant, a passenger in a vehicle stopped for a traffic violation, attempted to walk away from the vehicle even though the police ordered him to remain. In ruling that his subsequent detention was illegal, the Court of Appeals noted “there ordinarily is no reason to believe that a passenger in a vehicle is guilty, as an accessory or aider and abettor, of the traffic offense with which the driver may be charged.” Id. at 206. The police officer involved testified that Dennis was detained “‘for officers’ safety,”‘ id. at 208, and the Court concluded that, under the circumstances, a concern for officer safety was an insufficient basis to justify detaining him. Id. at 209.

Dennis was a traffic stop case. The Supreme Court has since made it clear that, even in routine traffic stops, [a] lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. footnote 6


The above cases make clear that police officers, upon making a valid traffic stop, have the right to control the scene of said stop. They have the right to maintain the security of that traffic stop. The cases make clear that it is a question of officer safety.

As the Supreme Court determined in Wilson v. Maryland, 117 S. Ct. 882 (1997), it is a balancing test between officer safety and personal liberty. The Wilson Court held that the continued detention of the passengers at the scene was a de minimis intrusion on the passenger’s liberty. If officers were to allow passengers to simply walk away from the scene of a traffic stop – or roam about at will – they run the risk of a passenger going to his house and returning with a weapon; or coming back with a gang of his cronies; or sneaking back on his own when the officer has his back turned.

That being said, the officer – if he or she so chooses – is, of course, free to allow the passenger/s to depart the scene, just as long as it isn’t at a location where pedestrian travel is prohibited (see TR §21-509).