State v. Landry

• Decision Date: 21 October 1991
• Docket Number: No. 91-K-0162,91-K-0162
• Citation: 588 So.2d 345
• Parties: STATE of Louisiana v. Wayne LANDRY. 588 So.2d 345, 60 U.S.L.W. 2315
• Court: Louisiana Supreme Court

Page 345

588 So.2d 345

STATE of Louisiana v. Wayne LANDRY.

No. 91-K-0162.

588 So.2d 345, 60 U.S.L.W. 2315

Supreme Court of Louisiana.

Oct. 21, 1991.

Rehearing Denied Nov. 21, 1991.

William J. Guste, Jr., Atty. Gen., Harry F. Connick, Dist. Atty., Charmagne Padua, Asst. Dist. Atty., for applicant.

Darryl A. Derbigny, New Orleans, for respondent.

LEMMON, Justice.

The principal issue in this case involves the suppression of evidence seized in a search of defendant's person incidental to an arrest after a routine traffic violation stop of the automobile in which defendant was a passenger.

I.

Defendant was a passenger in an automobile traveling in a New Orleans residential neighborhood at 1:00 a.m. when two police officers stopped the driver for exceeding the speed limit. The officers ordered both of the occupants out of the car as a normal safety procedure under the circumstances. While one officer checked the driver's license of the driver and his proof of ownership of the vehicle, the other officer asked defendant for identification, and defendant produced his driver's license. The officer then ran a computer check for warrants in defendant's name and determined that there was an outstanding attachment. Following routine police procedures, the officer arrested defendant on the basis of the attachment.

Pursuant to the full custody arrest, the officer searched defendant and discovered cocaine on defendant's person. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); compare State v. Breaux, 329 So.2d 696 (La.1986). The officer then arrested defendant for possession of cocaine.

Prior to trial defendant moved to suppress the evidence discovered during the search of his person on the basis that the officer had no justification for ordering a passenger from the car stopped for a routine traffic violation. The trial judge denied the motion, noting that the officer would have been unwise to leave anyone in the car when he ordered the driver to get out. Defendant then entered a conditional guilty plea, reserving his right to appeal on the suppression issue.

The court of appeal, in an unpublished opinion by a divided panel, reversed the conviction and suppressed the evidence. 571 So.2d 914. Relying on State v. Williams, 366 So.2d 1369 (La.1978), the court held that the officer's ordering the passenger out of the car was an illegal seizure of his person. The court noted that the Williams decision had refused to extend to a passenger in an automobile the rationale of Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), that a police officer may be justified for safety reasons in ordering a driver from the vehicle which has been stopped for a routine traffic violation.

We granted certiorari to consider the applicability and continued viability of the Williams decision. 577 So.2d 4.

II.

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), two officers stopped the defendant's vehicle to issue a traffic summons for driving with an expired license plate. One officer asked the defendant (the driver and only occupant) to step out of the automobile. As the defendant alighted from the vehicle, the officer noticed a bulge under the defendant's jacket. Suspecting that the bulge might be a weapon, the officer frisked the defendant and discovered that the bulge was indeed a loaded revolver.

Reversing the state court's decision that the officer's ordering the defendant out of the car was an impermissible seizure of the person, the Court held 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 n. 6, 98 S.Ct. at 333 n. 6. The Court observed that the inquiry in any Fourth Amendment analysis is whether the search or seizure was reasonable under all of the circumstances, stating that the determination of reasonableness requires a balancing of the public interest and the individual's right to be free from arbitrary governmental interference.

Addressing the public interest, the Court determined that the officer's ordering the traffic violator out of his car in order to establish a face-to-face observation diminished the substantial possibility that the driver may make unobserved movements and reduced the likelihood of an attack on the officer. Then turning to the defendant's privacy interest, the Court reasoned that because the driver of the vehicle had been lawfully detained, the officer's ordering the driver out of the car was an incremental intrusion into the driver's personal liberty which "can only be described as 'de minimis.' " Id. at 111, 98 S.Ct. at 333. The Court concluded that this de minimis intrusion could not prevail over the justified concern for the officer's safety under the circumstances.

In State v. Williams, 366 So.2d 1369 (La.1978), police officers stopped a vehicle which had no tail lights and ordered the two occupants out of the vehicle. As Willis, the passenger, was exiting from the car, the officer noticed a sawed-off shotgun between the front seat and the passenger side door. The officers immediately arrested both occupants for possession of the illegal weapon.

The majority at the outset questioned whether an officer who makes a routine traffic stop is placed in serious danger and whether the officer's ordering the occupants out of the car significantly enhances the officer's safety. Focusing on the case before the court, the majority distinguished the nature of the intrusion into the driver's privacy from the intrusion into the passenger's privacy. According to the majority, while the officer's ordering the driver out of the car after legally detaining him because of the traffic violation may have been only an incremental intrusion into his privacy, there was no justification to detain the passenger (who had not committed a traffic offense), and ordering him out of the car was not incremental to legal detention, but was independent of any justified intrusion into the passenger's privacy. Concluding that the intrusion was greater for the passenger and that the concern for the officer's safety did not outweigh the passenger's individual privacy interests, the majority held that the Mimms rationale does not extend to passengers in an automobile stopped for a traffic violation.

In the present case we decline to adhere to the view of the Williams majority that stops for traffic violations necessarily involve less danger to police officers than other types of confrontations. See United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973). A police officer's stopping a vehicle for a routine traffic violation sets up the possibility of a significant confrontational situation. The motorist may be driving a stolen vehicle, may be transporting contraband, may be in possession of illegal weapons, or may be involved in other criminal activity. The likelihood of danger may also be greater during darkness and in early morning hours, or when there are a number of occupants. A police officer who stops a vehicle for a routine traffic offense may be exposed, according to the circumstances, to a significant risk of attack, and concern for the safety of the officer may be a legitimate and weighty justification for reasonable intrusions into the privacy interests of the occupants of the stopped vehicle.

Furthermore, as shown by the facts in Williams, either the driver or the passenger of a stopped automobile can present a significant threat to the safety of the stopping officer. Any occupant of a vehicle may have access to a weapon or may have the propensity to use a weapon to escape the consequences of the confrontation. Ordering a passenger out of the vehicle not only places him in the view of the officer, but also distances him from access to weapons. The justification for ordering the passenger out of the vehicle is just as compelling as the justification for ordering the driver out. Under the circumstances of the present case, in which two men were stopped in a speeding car in the early morning hours, the officers' concern for their own safety justified their ordering both occupants out of the car.

On the other side of the balancing analysis, the intrusion into the passenger's privacy, while not incremental to a detention based on criminal behavior, was still de minimis. Although the passenger was not detained because of a traffic violation, he was stopped as a matter of necessity when the vehicle was stopped for the violation. If the passenger desired to remain with the car during the time necessary for the officer to issue a ticket to the driver, the officer's merely removing the passenger from the vehicle during the brief period of detention of the driver constituted more of a slight inconvenience to the passenger than a serious intrusion upon his privacy interests.

After balancing the safety and the privacy interests in the present case, we conclude that the officer had a right to order defendant to disembark from the vehicle in order to ensure the officer's safety. Accordingly, we overrule State v. Williams, 366 So.2d 1369 (La.1978), to the extent that it conflicts with this decision.

III.

Our conclusion as to the legality of the officer's ordering defendant out of the car does not end the inquiry into the validity of the search of defendant's person. Unlike the Mimms case the officer in this case did not have probable cause (arising in the Mimms case from the bulge under the accused's jacket) to search defendant as soon as he alighted from the car. And unlike the Williams case the officer in this case did not see contraband in plain view as soon as defendant left his seat in the car. Here, the search which produced the contraband was incidental to an arrest which occurred only after the officer inquired into ...