holding that Mimms rule applies equally to both drivers and passengers and even encompasses further order to get back into car
How later courts described this case
- holding that Mimms rule applies equally to both drivers and passengers and even encompasses further order to get back into car
- holding that for safety purposes, a passenger may be ordered back into the vehicle during a lawful traffic stop
- officer may order passenger back inside a lawfully stopped vehicle
Written by the judges who cited it.
The opinion
LIVERMORE, Chief Judge,
dissenting.
Implicit in the court’s ruling is the proposition that in every case in which police may stop a person, even for something as minor as driving with a broken taillight, they may seize anyone with the person stopped. Of course, any time a car is stopped everyone within it is stopped. It does not seem to me to follow, though, that those incidentally stopped are powerless to leave if they wish to and instead must remain involuntarily under police control until the police decide otherwise. Their detention is not supported by reasonable suspicion. The detention, if justified by considerations of officer safety, has to be premised on the notion that any stop creates a significant risk that those associated with the person stopped will attempt to harm the officer. That may be true when the reason for the stop is serious criminal activity. It cannot, it seems to me, be seriously argued that because danger exists sometimes, it must be assumed always to exist so as to justify the seizure of everyone present when anyone is stopped for whatever reason. 1 No argument is made, specific to the facts of this case, that the officer felt the seizure was necessary for his safety. He testified otherwise. In *375 stead it is justified on the broad rule that routine seizures may occur for officer safety regardless of the facts of the case. That rule, permitting wholesale seizures without individual justification, conflicts with the fourth amendment.
. Mimms treats as de minimis an order to one, already properly seized, to get out of a car. That surely cannot be read as treating a seizure itself as de minimis. See Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).