Can police order a passenger to stay in the car or get out? Does he need to show ID?

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures of persons, including unreasonable investigative stops. (Terry v. Ohio (1968) 392 U.S. 1, 19 & fn. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889; United States v. Sharpe (1985) 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605; see also People v. Souza (1994) 9 Cal.4th 224, 229, 36 Cal.Rptr.2d 569, 885 P.2d 982.) With respect to seizures, “[a] seizure occurs whenever a police officer ‘by means of physical force or show of authority’ restrains the liberty of a person to walk away.” (People v. Souza, supra, at p. 229, 36 Cal.Rptr.2d 569, 885 P.2d 982, citing Terry v. Ohio, supra, at p. 19, 88 S.Ct. 1868; see also California v. Hodari D. (1991) 499 U.S. 621, 625–626, 111 S.Ct. 1547, 113 L.Ed.2d 690.)

It is well settled that the driver of a vehicle that is the subject of a traffic stop is seized within the meaning of the Fourth Amendment. (Whren v. United States (1996) 517 U.S. 806, 809–810, 116 S.Ct. 1769, 135 L.Ed.2d 89.) The question whether a passenger in the vehicle is also seized at the time of the traffic stop, within the meaning of the Fourth Amendment, is currently *9 pending before the United States Supreme Court. (See People v. Brendlin (2006) 38 Cal.4th 1107, 45 Cal.Rptr.3d 50, 136 P.3d 845, cert. granted Jan. 19, 2007, sub. nom. Brendlin v. California, 127 U.S. 1145, 127 S.Ct. 1145, 166 L.Ed.2d 910.) We need not address or decide that issue, however, because here the question before us is whether defendant, a passenger in the Cadillac, was lawfully seized or detained when the officers first directed him to remain in the car and then directed him to sit on the curb. The Attorney General has conceded that this was a seizure. (See Saunders, supra, 38 Cal.4th at p. 1134, 45 Cal.Rptr.3d 66, 136 P.3d 859; see also People v. Castellon (1999) 76 Cal.App.4th 1369, 1374, 91 Cal.Rptr.2d 204; Maryland v. Wilson (1997) 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (Wilson ).) The parties argue whether or not the seizure was lawful.

These authorities fully support the conclusion under the circumstances here that the officers were justified in ordering defendant to stay in the car, and then to get out of the car with the other occupants. The two officers in this case were dealing not only with the driver of the stopped car, but with three passengers. One of the passengers was making furtive movements in the back seat at the same time as defendant, the other passenger in the back seat, was attempting to leave the car. The third passenger in the front seat chose to remain in the car. Thus, if the officers allowed defendant to walk away, the possibility of a violent encounter could arise from two locations: one from inside the car and the other from defendant’s location outside the car. The officers’ attention could be distracted by the different movements of the various occupants of the car. The officers, therefore, could reasonably require defendant to stay with the other occupants of the car, either inside or outside the car, pending completion of the car stop.

“Giving officers the authority to control all movement in a traffic encounter is sensibly **9 consistent with the public interest in protecting their safety. [Citations.] Allowing a passenger, or passengers, to wander freely about while a lone officer conducts a traffic stop presents a dangerous situation splitting the officer’s attention between two or more individuals, and enabling the driver and/or the passenger(s) to take advantage of a distracted officer.” (Williams, supra, 419 F.3d at p. 1034.)

Full case here: People v. Vibanco, 151 Cal.App.4th 1, 60 Cal. Rptr. 3d 1 (Cal. Ct. App. 2007),

Anton Vialtsin, Esq.
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