Bethea v. Com.

• Decision Date: 26 May 1992
• Docket Number: No. 0371-89-2,0371-89-2
• Parties: George BETHEA, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 249

419 S.E.2d 249

14 Va.App. 474

George BETHEA, Jr. v. COMMONWEALTH of Virginia.

Record No. 0371-89-2.

Court of Appeals of Virginia.

May 26, 1992.

Russell C. Williams, Asst. Public Defender (David J. Johnson, Public Defender, on brief), for appellant

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BAKER, BARROW, BENTON, COLEMAN, DUFF, MOON, WILLIS, ELDER and BRAY, JJ.

UPON REHEARING EN BANC

COLEMAN, Judge.

In this appeal, we hold that a police officer's request or directive for a passenger to step out of a lawfully detained vehicle does not constitute an unreasonable seizure in violation of the fourth amendment. A panel of the Court held that the officer illegally seized the passenger by asking or telling him to exit the car and, therefore, the evidence discovered on the passenger after he disembarked was the result of an illegal seizure. See Bethea v. Commonwealth, 12 Va.App. 303, 404 S.E.2d 65 (1991). Upon a rehearing en banc, we affirm the ruling of the trial court that refused to suppress the evidence; accordingly, we uphold Bethea's conviction for possessing cocaine with the intent to distribute in violation of Code § 18.2-248, for which he was sentenced to fifteen years imprisonment with seven years suspended.

A "seizure" for purposes of the fourth amendment occurs when the "circumstances ... amount to a show of official authority such that 'a reasonable person would have believed that he was not free to leave.' " "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person."

Moss v. Commonwealth, 7 Va.App. 305, 307, 373 S.E.2d 170, 171-72 (1988) (citations omitted). The fourth amendment does not proscribe all seizures, only those that are "unreasonable." Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968). Whether a seizure is unreasonable is determined by balancing the individual's right to be free from arbitrary government intrusions against society's countervailing interest in preventing or detecting crime and in protecting its law enforcement officers. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79, 45 L.Ed.2d 607 (1975). Employing this balancing test, the Supreme Court, in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), held that a police officer who ordered the driver of a lawfully detained vehicle to step out of the car acted reasonably, and thus, the seizure was permissible under the fourth amendment. The Court reasoned that the state's "legitimate and weighty" interest in the personal safety of its police officers, who otherwise could be exposed to danger from "assault" and "unobserved movements" if the driver remained in the vehicle, outweighed the "de minimis " intrusion into the driver's privacy interest in being required to step out of the vehicle. Id. at 110-11, 98 S.Ct. at 333.

While Mimms involved the driver of the vehicle, the principles upon which the decision is based logically extend to encompass a passenger in a lawfully detained vehicle. See id. at 122, 98 S.Ct. at 339 (Stevens, J., dissenting) ("the court's logic necessarily encompasses the passenger"); see also Rakas v. Illinois, 439 U.S. 128, 155 n. 4, 99 S.Ct. 421, 436 n. 4, 58 L.Ed.2d 387 (1978) (Powell, J., concurring) ("[T]his Court determined in Pennsylvania v. Mimms, that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made") (emphasis added); Foley v. Connelie, 435 U.S. 291, 298, 98 S.Ct. 1067, 1072, 55 L.Ed.2d 287 (1978); United States v. Taylor, 857 F.2d 210, 214 (4th Cir.1988).

The state courts which have considered the passenger issue, since the Mimms decision, have consistently held that it is reasonable for a police officer to direct or ask a passenger to exit a vehicle during a traffic stop and is consonant with fourth amendment protections. See State v. Landry, 588 So.2d 345, 347 (La.1991) (overruling State v. Williams, 366 So.2d 1369 (La.1978)); People v. Martinez, 187 Mich.App. 160, 466 N.W.2d 380, 383-84 (1991); Derricott v. State, 84 Md.App. 192, 578 A.2d 791, 793-94 (1990), cert. granted, 321 Md. 633, 584 A.2d 64 (1991); People v. Melgosa, 753 P.2d 221, 225-26 (Col.1988) (en banc); State v. Reynolds, 753 S.W.2d 1, 2 (Mo.Ct.App.1988); People v. Padilla, 132 Cal.App.3d 555, 183 Cal.Rptr. 97, 98 (1982). See also Hatcher v. Commonwealth, --- Va.App. ----, 419 S.E.2d 256 (1992).

Whether the actions of the officer are reasonable depends on the facts and circumstances of each case. Viewed in the light most favorable to the Commonwealth, Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), the evidence at trial established that George Bethea, Jr., was a passenger in a vehicle lawfully stopped by Officers Marvin Paulus and Harry Warren. Officer Paulus, who was new to the force, had a camera and had taken photographs of Bethea from the patrol car. The officers observed the occupants of the vehicle, and, in particular, Bethea, "making faces," "waving his hands," and "waving" at the officers. Because the vehicle did not display a City of Richmond decal on the windshield, the officers decided to stop the vehicle. When Paulus approached the driver, he asked him to step out of the car and asked to see his operator's license, which the driver did not have. While Paulus ran a Department of Motor Vehicles check to see if the driver was licensed, Officer Warren asked Bethea if he would "please step out of the car" because Bethea's antics just prior to the stop had scared him. Bethea exited the vehicle and Warren "took him in position right in front of his door near the hood of the car," where he remained. Officer Duncan Pence arrived on the scene shortly thereafter and observed rice on the front passenger floor of the vehicle, which he knew was used on occasion to keep cocaine or heroin dry. In the meantime, Pence saw Bethea get up on the rear of the automobile while holding the waistline of his shorts, jump off the vehicle, still holding his waistline with his right hand, and turn toward the vehicle so that Pence could not see his hands. Pence directed Bethea to take his hands away from his waist. Pence told Bethea that he was going to "pat him down in the area that he kept moving with his hands" to make sure he did not have a weapon. As Pence pulled Bethea away from the vehicle, a plastic bag containing rice and several packets of cocaine fell from the left pant leg of Bethea's shorts.

Bethea does not contest the legality of the stop of the vehicle. Also, the Commonwealth concedes that when the police stopped the vehicle and directed Bethea to step outside, Bethea was seized for fourth amendment purposes. Consequently, the sole issue is whether Officer Warren acted unreasonably when he requested that Bethea exit the vehicle. Bethea's liberty interest in remaining free from arbitrary intermeddling by state agents must be balanced against the state's interest supporting the officer's intrusive action.

The state's interest in the personal safety of its police officers is "legitimate and weighty." Mimms, 434 U.S. at 110, 98 S.Ct. at 333. By requiring a passenger to exit a vehicle, a police officer who, in a traffic stop, is involved with unknown individuals is able to establish "a face-to-face confrontation [which] diminishes the possibility, otherwise substantial, that [the occupants of the vehicle] can make unobserved movements [which], in turn, reduces the likelihood that the officer will be the victim of an assault." Id. (footnote omitted). We acknowledge that intrusion on a passenger's personal liberty is different than the intrusion on the driver's personal liberty, which was at issue in Mimms. Because the passenger has broken no law, he or she reasonably expects the police officers to deal solely with the driver. See 2 W. LaFave, Search and Seizure § 5.2(h), at 469 (2d ed. 1987). Nevertheless, the intrusion on a passenger's personal liberty is de minimis. The intrusion involves no touching, frisking or physical intrusion of the person; it is of short duration and the safety interest to be protected is "legitimate and weighty." To comply with the request, the passenger need only to exit the vehicle, an act that amounts to no more than a mere inconvenience. Like the driver, the passenger "is being asked to expose to view very little more of his person than is already exposed." Mimms, 434 U.S. at 111, 98 S.Ct. at 333. When the state's interest in allowing police officers to take measures for their protection and safety is weighed against the de minimis intrusion on the passenger's personal liberty, the former prevails. Consequently, Officer Warren acted reasonably in requesting that Bethea exit the vehicle and, thus, did not violate his fourth amendment rights.

Accordingly, we affirm Bethea's conviction.

Affirmed.

BENTON, Judge, with whom KOONTZ, Chief Judge, and BARROW, Judge, join, dissenting.

The majority's reliance on Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) to support its contention that the fourth amendment allows a police officer to order a passenger from an automobile and detain the passenger during a routine traffic stop is misplaced. "[A]bsent some articulable suspicion vis-a-vis the passenger, the Mimms rationale does not authorize removal of the passenger from the vehicle." State v. Becker, 458 N.W.2d 604, 607 (Iowa 1990). See also Heller v. State, 576 So.2d 398 (Fla.Ct.App.1991); State v. Schlosser, 774 P.2d 1132, 1135, n. 3 (Utah 1989); Johnson v. State, 601 S.W.2d 326, 329 (Tenn.Ct.App.1980).

The Mimms opinion "hold[s] 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."...