Asking Occupants to Step Out of a Vehicle
February 11, 2021 - Posted by Ed Esposito
When a vehicle is lawfully stopped by the police, there are times when officers can ask the occupants to step out of the vehicle. However, there are specific decisions from our Courts that guide us on this topic and the rules are not the same for drivers and passengers. Remember, the details in this article relate to a lawfully stopped vehicle. As a matter of law, if the initial stop of the vehicle is not lawful, any evidence seized will be suppressed because it is considered "the fruit of the poisonous tree."
Drivers
In New Jersey, officers may order the driver out of the vehicle, even in the absence of suspicion of criminal activity or a reasonable belief that those persons posed a threat to the officer’s safety. This can be done without any additional justification beyond the reason for the initial stop because asking a driver to step out of their vehicle does not amount to a new, distinct interference upon the driver’s Fourth Amendment liberty or privacy rights.
With that said, I always add a strong note of caution to this rule. While some may say that you can “automatically” ask a driver to step out of a lawfully stopped motor vehicle, a wise officer does not just “automatically” ask the driver of every vehicle they stop to do so. To support my position on this, we need to discuss briefly, the Fourteenth Amendment. The Fourteenth Amendment is what provides the right of every person to have equal protection under the law. This equal protection clause applies to every police decision, including asking a driver out of a vehicle.
Ultimately, the decision to ask the driver to “step out” is left to the officer’s discretion. Yet, problems may arise for an officer who is unable to be precise in explaining why they asked a driver out of a vehicle.
Generic explanations by officers in court such as, “based on my training and experience,” may lead to follow up questions that cannot be adequately answered. If that occurs, the “reviewing courts are more likely to be skeptical and are more likely to wonder whether the exercise of discretion was based on a hunch or gut feeling that, in turn, may have been based on or at least influenced by an impermissible factor.” (NJ AG RIP Companion Guide)
Passengers
Officers may not “automatically” or “routinely” ask passengers out of a vehicle that has been stopped. Although the Federal rule is different, in order to justify ordering the occupants to step out of a vehicle detained for a traffic violation, an officer must be able to point to some specific fact(s) that would warrant “heightened caution.” To lawfully order passengers to exit, make sure there is a specific fact, in the totality of the circumstances, which would reasonably create a heightened awareness of danger. Examples could include: the inability to control the movements of several occupants, poor visibility, suspicious gestures and even proximity to traffic.
When a vehicle is lawfully stopped by the police, there are times when officers can ask the occupants to step out of the vehicle. However, there are specific decisions from our Courts that guide us on this topic and the rules are not the same for drivers and passengers. Remember, the details in this article relate to a lawfully stopped vehicle. As a matter of law, if the initial stop of the vehicle is not lawful, any evidence seized will be suppressed because it is considered "the fruit of the poisonous tree."
Drivers
In New Jersey, officers may order the driver out of the vehicle, even in the absence of suspicion of criminal activity or a reasonable belief that those persons posed a threat to the officer’s safety. This can be done without any additional justification beyond the reason for the initial stop because asking a driver to step out of their vehicle does not amount to a new, distinct interference upon the driver’s Fourth Amendment liberty or privacy rights.
With that said, I always add a strong note of caution to this rule. While some may say that you can “automatically” ask a driver to step out of a lawfully stopped motor vehicle, a wise officer does not just “automatically” ask the driver of every vehicle they stop to do so. To support my position on this, we need to discuss briefly, the Fourteenth Amendment. The Fourteenth Amendment is what provides the right of every person to have equal protection under the law. This equal protection clause applies to every police decision, including asking a driver out of a vehicle.
Ultimately, the decision to ask the driver to “step out” is left to the officer’s discretion. Yet, problems may arise for an officer who is unable to be precise in explaining why they asked a driver out of a vehicle.
Generic explanations by officers in court such as, “based on my training and experience,” may lead to follow up questions that cannot be adequately answered. If that occurs, the “reviewing courts are more likely to be skeptical and are more likely to wonder whether the exercise of discretion was based on a hunch or gut feeling that, in turn, may have been based on or at least influenced by an impermissible factor.” (NJ AG RIP Companion Guide)
Passengers
Officers may not “automatically” or “routinely” ask passengers out of a vehicle that has been stopped. Although the Federal rule is different, in order to justify ordering the occupants to step out of a vehicle detained for a traffic violation, an officer must be able to point to some specific fact(s) that would warrant “heightened caution.” To lawfully order passengers to exit, make sure there is a specific fact, in the totality of the circumstances, which would reasonably create a heightened awareness of danger. Examples could include: the inability to control the movements of several occupants, poor visibility, suspicious gestures and even proximity to traffic.