We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.

Pennsylvania v. Mimms

434 U.S. 106 (1977)

U.S. Supreme Court

December 5, 1977

At approximately 9 a.m. on Monday September 7, 1970, Labor Day, Philadelphia Police Officers John Kurtz and Lester Milby observed Mr. Harry Mimms driving west on Baltimore Avenue in an automobile bearing an expired license tag. The officers stopped the car in order to issue a summons. Officer Kurtz asked Mr. Mimms to step out of his car. Officer Kurtz testified that when Mr. Mimms stepped out of the car, he noticed a large bulge on his hip under his jacket. The officer frisked Mr. Mimms, and seized a loaded .38 caliber revolver from his waistband. Officer Milby testified that he then frisked the front seat passenger, Mr. Clayton Morrison, and found a .32 caliber revolver.

Mr. Harry Mimms was stopped by Philadelphia Police Officers John Kurtz and Lester Milby on Baltimore Avenue in Philadelphia, Pennsylvania for an expired tag.  This is a section of Baltimore Avenue near the Cedar Park section of Philadelphia.  The exact spot of the traffic stop is not described in the case.

Both Mr. Mimms and Mr. Morrison were charged and convicted of Carrying a Concealed Weapon.  Mr. Mimms was convicted of CCW and his appeal to the Pennsylvania Supreme Court was successful as that court overturned the conviction.  The U.S. Supreme Court accepted the case and the court held “We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” Id at 111.

Lessons Learned:

  1. When a traffic violator is lawfully stopped the driver may be ordered out of the vehicle. The U.S. Supreme Court opined in the dicta of the case; “The hazard of accidental injury from passing traffic to an officer standing on the driver’s side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both.” Id at 111 – 112. Here the court recognized the dangers of law enforcement on the side of the roadway for both the violator and officer.  However, the initial encounter must begin with a traffic violation.  If the encounter begins as investigative detention, then ordering an occupant out of the car would be evaluated under a different legal analysis.
  1. Ohio Traffic Crashes. A year after the Mimms case was decided by the U.S. Supreme Court the Supreme Court of Ohio decided in State v. Darrington, 54 Ohio St.2d 321 (1978) that law enforcement in Ohio could order drivers out of vehicles involved in traffic crashes as it held “[I]t was not unreasonable for the officer to request an inspection of appellee’s operator’s license and to request that appellee alight from his vehicle.”.  Id at 324.
  1. Ordering passengers out of the vehicle. On June 8, 1994 at 7:30 p.m. Maryland State Trooper David Hughes observed a 1994 Nissan Maxima speeding and without a license plate.  Hughes attempted a traffic stop but the driver later identified as Mr. McNichol, continued another mile and a half until he stopped.  Mr. McNichol was directed out of his car [Mimms] and questioned.  During this questioning about the car, which was rented from Enterprise Rental, he was nervous but provided the trooper the information requested. During this time the passenger, later identified as Jerry Lee Wilson, also appeared to be nervous and was also sweating.  Mr. Wilson was the front seat passenger.  Tr. Hughes ordered Mr. Wilson out of the car and as he stepped out crack cocaine fell off of his lap and on to the ground.  The cocaine was seized by Tr. Hughes, Mr. Wilson was charged and convicted of Possession of Cocaine.  He appealed to the U.S. Supreme Court which held “We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”  Id at 415.  Information for this subsection was obtained from both Maryland v. Wilson, 519 U.S. 408 (1997) and Maryland v. Wilson, 106 Md. App. 24 (1995).

 

  1. The Lozada Limitation. State v. Lozada, 92 Ohio St.3d 74 (2001).  Based on both Mimms and Wilson, law enforcement may order the driver and/or passengers out of a vehicle that is lawfully stopped.  However, ordering the occupants out of the car does NOT give law enforcement the authority to place either driver or passenger(s) in the back seat of the cruiser.  On June 20, 2001 the Supreme Court of Ohio held “[W]e hold that during a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer.” Id at 77.  So how should the Lozada limitation be applied?  Ohio Law enforcement cannot place the driver or passenger in the back seat of the cruiser if the reason is the officer’s convenience.  What is an officer’s convenience?  This would include most interactions at the roadside between law enforcement and citizens.  Law enforcement cannot place occupants in the back seat to issue a citation, which would be the most common application.  If an officer needs to segregate an occupant from others inside the vehicle to question the person, then that too would most likely be inhibited under Lozada as the officer could question the occupant roadside as opposed to within the cruiser.  What may not be considered the officers’ convenience would be extreme weather.  If it is raining excessively hard, strong winds and extreme cold may be examples.

Does your agency train on Traffic Stops?

Don’t fail your training – don’t let your training fail you!

Be safe, smart and objectively reasonable!

Robert H. Meader Esq.