Maryland v. Wilson - Oral Argument

Argument of J. Joseph Curran, Jr.

Chief Justice Rehnquist: We'll hear argument now in Number 95-1268, Maryland v. Jerry Lee Wilson.

General Curran.

Mr. Curran: Mr. Chief Justice, and may it please the Court:

Nearly 20 years ago this Court held in the case of Pennsylvania v. Mimms that it was reasonable under the Fourth Amendment for a police officer in making a car stop for a traffic violation to require the driver to exit the car.

The risk to the officer is such in these stops that it was also permitted for the officer to request the driver to get out without any suspicion that the driver would pose a danger to the officer.

The latest figures that we have available demonstrate that the risks are real to police officers in traffic stops.

The latest figures in 1994 show that 5,762 police officers were assaulted in traffic stops.

Indeed, since the decision in Mimms there have been over 200 police officers slain in traffic stops.

Because passengers, like drivers, have--

Unknown Speaker: Excuse me.

When you say assaulted in traffic stops does that include those who were assaulted by people who got out of the car and physically assaulted them?

Mr. Curran: --The... yes.

Yes, Justice--

Unknown Speaker: Well, that would cut the other way.

I mean, that... they'd be better off to leave them in the car, if that... you know, if that's the assault you're talking about.

Mr. Curran: --Well, there were a total of some 52,000 assaults during that given year, '94, of which 5,700 were in traffic stops.

Unknown Speaker: What I'm suggesting is that the relevant figure is how many of the assaults came while a person was in the car, so that they might have been prevented by making the person get out of the car.

Many of them may have occurred by taking the person out of the car.

Mr. Curran: Those are figures are not available--

Unknown Speaker: Okay.

Mr. Curran: --Your Honor.

Unknown Speaker: Isn't it true, General Curran... I remember this from the Mimms case... that there's a split of professional opinion on whether it is safer for the officer to order them out of the car or to tell them to stay in the car?

Is there still a respected body of professional law enforcement opinion that says you're safer if you don't ask them to get out of the car?

Mr. Curran: Well, Justice Stevens, the typical practice, and I can refer to Maryland, of course, but I believe the briefs will show the typical practice is to control the risk.

That's what the training is, to control the risk, and typically they keep the driver and the passenger in the car.

However, having said that, as the New York v. Class case indicated, there is this discretion the officer can use, and what we're asking, of course, is the automatic rule for that discretion to be utilized in the Wilson case, as this Court granted in the Mimms case.

Unknown Speaker: General Curran, are you saying that if the officer made the decision to keep the person inside, it would be the officer's call, too?

Suppose a passenger says, I want out.

I'm going to take a car and go home... take a cab and go home.

Mr. Curran: The answer is yes, Justice Ginsburg.

We want the officer to be able to require the passenger to get out or, where it's appropriate, to stay in, and in order to control the stop the officer should be able to control the location of the passenger, and the location can be outside the car, or it could be, in an appropriate case, inside the car.

Unknown Speaker: How far does the authority extend?

Would you say that the passenger would be free to leave if the passenger chose after exiting the car at the officer's request?

Mr. Curran: No, Your Honor.

We do not take that position.

We want the officer to be able to control the risk, control the location.

Unknown Speaker: Well, you want more than the right to require the passenger to exit.

You want to require the passenger to be detained.

Mr. Curran: Yes, Your Honor.

We--

Unknown Speaker: For how long?

Mr. Curran: --We want... there is no time frame as... I can tell you what the typical stop--

Unknown Speaker: To be searched?

Mr. Curran: --No, Your Honor, not a frisk.

Unknown Speaker: To be asked any questions?

Mr. Curran: Could be asked, but not required to answer.

To get out, to step aside, to show your hands.

Unknown Speaker: Well, you say there's no time limit.

I assume the time can be no more than is reasonably required for the officer to complete the process of issuing the citation.

Mr. Curran: Yes, Your Honor.

It would be within what is typically 10, or at the outside 20 minutes.

Unknown Speaker: Can he order some people in the car and some people out of the car?

Mr. Curran: Yes, Your Honor, he could.

Unknown Speaker: What would be the reason for detaining the passenger in a situation like that?

I can see that safety reasons might suggest that you be able to... the officer be allowed to order the passenger out of the car, but for detaining them if they then wish to leave, what would be the Fourth Amendment reason for that?

Mr. Curran: The officer has to... Mr. Chief Justice, the officer has to be able to control the stop, to complete safely the transaction, getting the information from the driver, the registration, the license, et cetera, and in order to do that safely, he needs to be able to know where any potential danger to him or her lies.

Controlling the location of, in this case Mr. Wilson, would have been the appropriate way to do that.

He could have seen that he did not pose a particular danger by seeing his hands.

We are suggesting that the balancing that this Court went through in Mimms is really the same for the Mr. Wilsons, the passengers.

There is this compelling governmental interest of police safety, which has been acknowledged, against what is a de minimis intrusion against Mr. Wilson, where there has already been a diminished expectation of privacy by being in the car in the first place.

Unknown Speaker: This right to control the site, what's your best citation from this Court giving you that authority, Michigan and Summers, or--

Mr. Curran: Well, Michigan and Summers, Justice Kennedy--

Unknown Speaker: --Is that the closest case, do you think?

Mr. Curran: --Sir?

Unknown Speaker: Is that the closest case to support the proposition that the officer does have this authority to control the location?

Mr. Curran: Yes, Your Honor.

To control the safe completion of, in that case the search of the house, he had to have the ability to make certain that he could safely and successfully complete the search, and the same weight goes here.

The--

Unknown Speaker: Well, but there is a difference.

I mean, the driver was stopped because there was reason to believe he had violated a traffic law, or requirement, that the driver was speeding while making an illegal turn, or without a license on the car, or whatever.

But there is no such suspicion on the part of the passenger, who was not driving the car, and I don't think Pennsylvania v. Mimms, which says yes, you can require the driver to step out and wait until the ticket is issued or a resolution is made on that question, but I'm just not sure what the authority is for detaining a passenger who is required to step out.

The passenger is not suspected of an illegal driving offense.

Mr. Curran: --Justice O'Connor, we would respectfully suggest that it's the Mimms decision that required the driver to exit not because in this case he was speeding, as was the probable cause, or not because there was a faulty tag, but because the Court concluded that there was potential danger, and so for the reason that they wanted... police safety was the reason Mimms got out of the car, not because there was--

Unknown Speaker: Yes, but nevertheless they had a right to stop the car because it was an alleged traffic violation by the driver, isn't that so, otherwise they couldn't have stopped the car at all, presumably.

Mr. Curran: --That is correct.

Unknown Speaker: Okay, and that reason does not apply to the passenger, so I'm trying to understand what is your authority for claiming the right not only to require the passenger to exit, but to detain the passenger.

Mr. Curran: If Your Honor please, when there was a stop of the Mimms car or the Wilson car by virtue of physics both are seized, or both are detained, so there the driver and the passenger are identical.

They're both seized.

They're both stopped.

If, in fact, the rationale of Mimms is to be conveyed to the passenger, the safety of the officer, it is equally apparent that the passenger would have had much... just as much access to the gun as Mr. Mimms would have had.

Unknown Speaker: But it's not just physics, it's privacy and dignity, and we all know that the police will take our decisions as far as their language and logic permit, and I'm just concerned that you're going to have routine practices of whole families and four or five occupants of the cars being required to stand outside while the officer lectures the driver.

I mean, that's just going to happen, isn't it?

Mr. Curran: Well, Justice Kennedy, that would happen now in Mimms, because without any discretion, or any guidelines, the officer now may in that case require someone to exit.

Unknown Speaker: Well, but that's what we're here to decide--

Mr. Curran: And for the same--

Unknown Speaker: --And you're proposing a general automatic rule that passengers can always be required to exit at the demand of the officers.

Mr. Curran: --Yes.

Yes, Your Honor, that's the proposal that we have, and the rationale being that the order out in Mimms was not because of the traffic violation but because of the finding that there is... there's a compelling reason for police safety to require the officer to make that--

Unknown Speaker: But you have a lesser interest on the part of the driver in privacy or not being free from whatever you... whether it's searching... the driver... there's probable cause to believe that the driver has committed an offense, whereas there isn't any probable cause to believe that the passenger has committed offense, an offense, so the calculus, if it's a weighing process, the interests of the passenger would seem stronger than the interest of the driver.

Mr. Curran: --Mr. Chief Justice, I would take the position that the privacy interests of the driver and the passenger are identical.

However, if the Court should so find that there is a minor privacy interest difference, notwithstanding, there still is... as far as the passenger is concerned he already has a diminished expectation of privacy, and with that diminished expectation of privacy, we're talking about a very diminished intrusion.

Unknown Speaker: Well, not necessarily.

Suppose it's a driving snowstorm, or a blinding rainstorm, the passenger is a mother with a very young baby, and the officer automatically can order her out of the car, to put the baby down outside where he can see the baby and raise her hands up, and real damage can occur, and there is no reason that the car was stopped because of what that passenger was doing under the circumstances here.

Now, maybe an officer can see a passenger in the car holding a gun.

Well, that's a different situation, isn't it.

But is there any... and suppose the Court thinks there is a real difference between the driver and the passenger in that the driver can be stopped for what the officer perceives is a traffic violation.

Mr. Curran: Yes, Justice O'Connor, I see the point you're trying to raise, and obviously the question of a baby and a yound mother out in the rain is obviously not--

Unknown Speaker: That's just one example and you want an automatic rule.

Mr. Curran: --Yes, Your Honor, we do want the automatic rule, and I might add, the same--

Unknown Speaker: And it will work automatically, too.

Mr. Curran: --Yes.

Unknown Speaker: Because bureaucracies being what they are, in order to protect themselves from claims of discrimination, making some people get out because of their race or because of whatever else, to be sure that no such claims will be available they will make everybody get out.

That will be an invariable rule.

Mr. Curran: With respect, Justice Scalia--

Unknown Speaker: Even the lady with the baby.

Mr. Curran: --With respect, Justice Scalia, I appreciate the question.

That same scenario, of course, could happen under Mimms, and Mimms has now been with us for 19, almost--

Unknown Speaker: The question is, do you have concerns about it?

Do you, as the chief law enforcement officer of your State, have concerns about a rule where throughout your State, maybe throughout the country, all the occupants of every vehicle that is stopped for a traffic offense can be ordered to get out of the car and routinely are required to parade the... required to remain in public view while the citation process is going on?

Do you have any concerns about that?

Mr. Curran: --Well, I obviously have.

Yes, Justice Kennedy, I obviously have a concern.

The point we're making, though, is that removing a driver doesn't eliminate the danger that we talked about in Mimms.

The passenger has equal access to the same revolver that Mr. Mimms would have had, so removing the driver does not eliminate the problem.

Yes, I admit, Justice O'Connor--

Unknown Speaker: Or suppose the passenger has certain dementia.

It's an old parent who, left to his own, will just wander away and not even understand what was being said to him, but automatically you're going to get this passenger out and require him to stay, and if he doesn't understand, shoot him.

[Laughter]

You know.

I just... this can be carried to extremes, and you seem to don't even recognize that there might be a difference.

Mr. Curran: --I do understand, Justice O'Connor, there is a difference.

I'm simply suggesting this, that removing the driver does not remove the danger.

In fact--

Unknown Speaker: Everybody agrees with that.

I just... everybody agrees with that, but the question is the risk of abuse.

Now, I notice in the opinion, but I... maybe it's in the briefs and I didn't see it... it says several jurisdictions already have extended Mimms to passengers.

Is there any indication that there are any of these problems, or there are not these problems, in the other jurisdictions that have already adopted the rule that you want?

Mr. Curran: --Your Honor, I am not able to say that I have researched the cases in the other jurisdictions, but indeed I will tell you that there are a majority... there are 20 States that have ruled the way Maryland wishes to rule, and there are five... including the District of Columbia, so there are 21 areas, including there are five, four or five Federal circuit courts, mostly in the--

Unknown Speaker: So we have to look at those.

Mr. Curran: --There is a--

Unknown Speaker: We have to look those up.

Mr. Curran: --A substantial majority have ruled this way.

There's five that have ruled against us, to be honest with you.

Unknown Speaker: I have another question which I wanted to ask, which is that I didn't know until this argument that you are suggesting that the police should have the right to detain the passenger.

I thought that you were... after... suppose the passenger gets out of the car, and the policeman asks him to, and then he says, I'm fed up with this.

I want to take a bus.

And the bus goes along, and he takes it.

Are you arguing that the policeman should be free to tell him no, you can't take the bus?

Mr. Curran: Yes, Your Honor.

Unknown Speaker: Where is... I didn't find that in your brief, and I don't know what the rationale for that would be.

Mr. Curran: It is in our brief and in our argument in terms of the ability to control, Your Honor, the location.

The individual may say, I wish to take a bus and go elsewhere.

The officer need not accept that as real.

The officer is still concerned about his genuine safety, and the only way he can really make certain it is a safe stop is to control the location--

Unknown Speaker: General Curran, you did say that it would only be to show his hands, that he could not be frisked.

The officer could not question the passenger without the passenger's consent.

Mr. Curran: --Yes, Your Honor.

Unknown Speaker: So once he shows his hands, then he can walk away and hail a cab?

Mr. Curran: No, Your Honor.

Unknown Speaker: Well, what can he do, then?

Can you--

Mr. Curran: Our rule would ask the passenger to get out, to stand in a certain location described by the officer, to show his hands, and to remain there for the 10 minutes while the information is obtained about the license and the registration.

Unknown Speaker: --So he just has to stand there.

He can't be questioned and he can't be frisked, but he's not free to leave until the officer says, okay, I'm done, you can go.

That's the rule you want.

Mr. Curran: Yes, Your Honor, or the officer may, with discretion, as we've talked about in Class, permit the passenger to remain in the car.

Unknown Speaker: General Curran, can I ask this one question?

You suggested as a justification for that that the passenger is already seized, just like the driver.

They're both forced to stop.

But the driver has been lawfully taken into custody during the investigation.

There's no lawful authority to take the passenger into custody.

He's seized in the sense the car had to stop, but he's not legally seized, is he?

Mr. Curran: No, sir.

Unknown Speaker: General, as you have put the case, you really just want the officer to have the opportunity to exercise judgment in deciding whether the passenger ought to get out or not.

Mr. Curran: Yes, Your Honor.

Unknown Speaker: Why doesn't Terry give you the authority for that?

I assume, for example, that in this case under the principles of Terry, with all the movement of the car, the ducking around and so on, that the officer probably would have had the authority at least to go as far as Terry would have let him go in asking or satisfying himself that the passenger wasn't a danger.

Why isn't Terry enough?

Mr. Curran: Your Honor, we would have thought that there was justification for a reasonable suspicion in the Wilson case.

However, we don't believe it's appropriate to have the officer try to wait for some level of risk to arise if he or she waits--

Unknown Speaker: But I thought your argument was that the officer was going to exercise judgment, and if your argument now is that he doesn't have to wait for some indication of risk, then I think you're really saying the officer as a routine matter is going to order every passenger out of the car, so I think that's a difference in your position.

Mr. Curran: --I'm not so sure that's the case, Justice Souter, because as I say, the typical training in our manual, which indicates... and I believe it's typical across the Nation... is to require both the driver and the passenger to remain in the car.

Unknown Speaker: Well, my understanding was that you want a holding that lets the officer at the officer's discretion require all parties to exit or no parties to exit, but if he wants all parties to exit, they must, and you want the right, then, to detain the passengers who have exited.

Mr. Curran: That is correct, Your Honor, for this minimal--

Unknown Speaker: Well, all right, but the Fourth Amendment, after all, is based on reasonableness.

That's been the requirement all along, and should there be no reasonableness requirement on the matter of detaining passengers?

Mr. Curran: --We believe, Justice O'Connor, that the reasonableness factor is best weighed by the balancing test that the Court has used again and again, the high governmental interest against this minimal intrusion against what is already a de minimis privacy expectation of the passenger.

Unknown Speaker: And in circumstances where it isn't a de minimis intrusion.

Mr. Curran: Yes, Your Honor.

May I be permitted to reserve the balance of my time?

Unknown Speaker: Very well, General Curran.

We'll hear now from the Attorney General, Ms. Reno.

Argument of Janet Reno

Mr. Reno: Mr. Chief Justice, and may it please the Court:

Traffic stops present special dangers to police officers.

They're faced with an unknown situation, an unknown area, they're faced with little knowledge, if any knowledge of the occupants of the car, and they are vulnerable to attack not just from the driver but from the passenger.

In Mimms, this Court found that these safety concerns justify a per se rule that an officer in a valid traffic stop can order the driver to exit the vehicle.

We submit that Mimms should be applied to passengers for three reasons on the issue of order to exit.

First, the driver... the officer has to focus on the driver in implementing the traffic stop and in securing the information with respect to a license or to the vehicle.

He cannot monitor the passenger's conduct at the same time.

The focus in Mimms was on the inordinate risk, and the Court made specific reference to the inordinate risk as an officer approaches a person seated in the car, and the Court specifically said that the officer had no reason in Mimms to believe that the officer was suspect as to foul play, so it was the focus on a person seated in the car that created the danger.

Unknown Speaker: General Reno, you want no reasonableness limitation on this.

I suppose that means that a police officer could stop a bus and say, everybody off the bus.

Or... you know, does vehicle size come into it?

Mr. Reno: Yes, Your Honor.

That might be a more difficult question for the Court, but--

Unknown Speaker: Well, not for you.

You want no reasonableness limitation.

Mr. Reno: --Again, the bus situation can be an unknown situation for that officer, and he needs the opportunity, under our position, to be able to size up the situation, to determine and observe the people involved, and he may determine that he wishes them to stay in or to exit.

Police practices indicate that both are appropriate, depending on the stage of the traffic stop and depending on the circumstances of the traffic stop.

We are submitting that under the... this Court's rule in Mimms, it is the persons seated in the vehicle that create the danger and the approach to that danger, and a police officer should not have to calibrate what is in... critical and what is not critical.

He should be able to size up the situation, determine who's there, get full view of them when appropriate, get them out of the car to neutralize the situation, to get them away from the gun, and we submit that the intrusion is de minimis.

Unknown Speaker: Well, why isn't Terry enough?

I mean, your argument is that he ought to be able to size up the situation.

Terry gives him a chance to size up the situation.

Mr. Reno: Terry might not have given, if the passenger had been in the same situation as Mimms with a gun in his... under his sports coat, he might not have been able to see that seated in the car.

Unknown Speaker: Well, then I think what you're really arguing, and I think this was what the Attorney General from Maryland was really arguing, is you really don't so much want him to size up the situation.

You simply want to have the right to get him out of the car, period.

It's not going to be a question of judgment.

It's going to be a question of routine practice, I assume.

Mr. Reno: No, Your Honor.

As this Court has pointed out and as police practice points out, in many instances they will want them to stay in the car.

If one officer is on the scene, he may want them all in the car so he can better control them, or if the lighting is such or the circumstances are such or the window is such that he wants the passenger whom he has seen looking at him in a curious way, he may want him out of the car to determine whether he has a weapon on his person.

It's going to depend on so many different circumstances--

Unknown Speaker: But may I interrupt with just this one thought that crosses my mind?

Do you think the officer is greater or less danger, if there's a passenger sitting in the car with the gun in his jacket as you describe, if he tells him to get out of the car?

Is he less or... which situation would he be more apt to use the gun in?

Mr. Reno: --One cannot say when... how he would be more apt to use the gun.

What he can say is that there would be situations where that gun may not be observed as the passenger--

Unknown Speaker: Right.

It would certainly help to arrest people who carry guns, that's right.

I see you would catch more gun-carriers, but I don't think that's the justification you're advancing.

Mr. Reno: --That is... the justification that I'm advancing is that that officer should have the ability to immediately size up the situation, determine if there is any reasonable suspicion to believe that a person is armed, and then advance to Terry frisk if that is appropriate, but that he should have the opportunity to control the situation if he is the single officer on the scene before the backup comes, to keep them in the car so that he doesn't have a person moving here, here, and here, or to get them out of the car if there are circumstances that dictate that they should be out of the car.

Unknown Speaker: General Reno, you are arguing for a bright line test, and I'm wondering how that squares with the very recent decision of this Court in Robinette, which said that reasonableness is always case-by-case totality of the circumstances, and yet here you're saying that it's reasonable in any and all circumstances for the police officer to say, everybody out, or everybody in.

That doesn't go case-by-case.

Mr. Reno: In Robinette, Your Honor, the Court specifically cited it would favor the Mimms decision, and concluded... pointed out that Mimms, considering all the totality of the circumstances, that it was reasonable in light of the safety concern for the officer that was more than balanced against the de minimis intrusion into the passenger's personal security, that in those totality of circumstances it was reasonable, under Mimms, to justify it.

Unknown Speaker: General Reno, how much of a problem is it in the States that haven't adopted this rule?

How often does a citizen who has been told to stay in the car or told to get out, in those States that require a reasonable suspicion, at least, on the part of the officer, how often have those citizens sued and recovered?

I mean, is it a real problem?

Mr. Reno: I don't have any information that I could provide to you, Your Honor.

Unknown Speaker: Let me ask you a question on something that frankly I think I should have done some looking into before I came on the bench, but I didn't.

Has this Court ever ruled on the authority of an officer to control members of the public generally when making, let's say, an arrest in a public place?

Mr. Reno: I'm not familiar with the opinion, Your Honor.

Unknown Speaker: I'm not, either.

There may not be one.

There are holdings, are there not, on control of a crime scene, to require people to stay away while they assemble evidence and--

Mr. Reno: At a crime scene, if someone entered in beyond the crime rope there would definitely be authority to control, and it would depend on the State law.

Unknown Speaker: --Do you think a policeman is more at risk from a passenger in the car than from the bystanders who congregate when the stop is made?

Why is he more at risk from the passenger, bearing in mind that the car has been stopped only for a traffic vio... I mean, if the car has been stopped because of suspicion of drugs, that would be something else, but let's assume it's just a speeding violation.

Is an officer usually more at risk from the passenger than from bystanders?

Mr. Reno: The issue with respect to a traffic stop, Your Honor, is the unknown, the danger in approaching the vehicle.

The danger in approaching people seated in the vehicle is what the Court in Mimms specifically referred to.

In the instance where you have people who are bystanders you have an opportunity to observe them to make an appropriate decision, but in the situation with the automobile, he's approaching an automobile.

He doesn't know what's in it.

He can't see into it from his patrol car.

He doesn't know who's there.

He can't see their actions fully.

That is the issue that makes this situation different than the situation of bystanders who may be in plain view.

Unknown Speaker: The concealment thing.

Do you agree, General... Ms. Reno with the Attorney General from Maryland that the passengers who have been told to exit can be required to remain and not take the taxi or leave?

Mr. Reno: That's not the issue before the Court, but we would submit that it would be reasonable under the Fourth Amendment.

Unknown Speaker: So that this is a prolonged seizure.

Mr. Reno: It is not a prolonged seizure because this Court in Berkemer has referred to traffic stops.

It applies to routine traffic stops.

It applies to a brief, temporary stop, and under those circumstances the officer should be able to see the person as they exit the car.

Unknown Speaker: Well, we know that when they check licenses on their radio and hold the passenger it can sometimes take 15 or 20 minutes for a routine traffic stop, can it not?

Mr. Reno: It can, and the Court has recognized that is usually of that duration, but that is a limited duration in which the police officer can have the opportunity to size up the situation and see whether the person presents a threat.

For example, if the person got out of the automobile, and this is not the issue before the Court, and suddenly ran into the bushes and... the officer, we submit, ought to be able to control that situation so he can first determine the risk to him before the person departs.

Unknown Speaker: Let's assume for the sake of argument that we do not adopt the rule that goes as far as you have just suggested it should, that... let's assume our... under our rule, once the passenger is out of the car, if the passenger wants to go, he can.

If that is the limit of the detention allowed, is the situation of the passenger in any significantly different... is the situation of the passenger significantly different from that of a bystander in the course of a public arrest somewhere?

Mr. Reno: May I--

Unknown Speaker: Yes.

Mr. Reno: --complete the answer, Your Honor?

In that situation, if the person were free to go, again the officer would have the opportunity to observe him, to see whether there was a basis for a reasonable suspicion that would justify a frisk, or justify action to protect the officer's safety in that situation.

Unknown Speaker: Thank you, Ms. Reno.

Mr. Warnken, we'll hear from you.

Argument of Byron L. Warnken

Mr. Warnken: Mr. Chief Justice, and may it please the Court:

The State of Maryland asks this Court today to draw a bright line that would permit a compelled detention essentially ultimately equalling perhaps the level of an arrest as to every single passenger in every single vehicle in every single circumstance for every single officer.

Unknown Speaker: Well, Mr. Warnken, may I just ask you the same question that I asked Ms. Reno?

Let's assume that the bright line rule allowed nothing more than requiring the passenger to get out of the car so that if the passenger then said, I've had enough of this, I'm leaving, the passenger, so far as the bright line rule is concerned, would be allowed to go.

Assume that.

In fact, the passenger says, thank goodness.

This guy was speeding.

I am so glad to get out of this car.

[Laughter]

Let me catch the nearest cab and go--

--You can see what Justice Scalia's passengers tend to feel like.

[Laughter]

Assuming that Justice Scalia is the one who has been stopped and it's his passenger--

[Laughter]

--who is then free to go, would the bright line rule simply allowing the officer to say, get out, give the officer any greater authority than the officer has in the case of sort of the public arrest, in which people are congregating around and the officer says, stay back, or get away, or something like that?

Mr. Warnken: Justice Souter, I think the answer is that the bright line should not be drawn there.

I certainly concede of the various places on the continuum that would be probably the next best place to the one the State of Maryland has asked for.

Unknown Speaker: Okay, but I'm not sure that responds to my question, because my question is, if the bright line would allow the officer to go no further than to say either get out or stay in, would the officer have any... be having any greater authority there than the officer presumably does when making a public arrest, in which he is allowed to control bystanders in the crowd by telling them to stay away?

Mr. Warnken: Justice Souter, I think that would be different.

The reason that would be different is that in the arrest scenario, where you are arresting one individual, the other people have nothing to do with that and simply you're using the crowd control of letting them not join where you are, if you will.

But here we're talking something different in that, as was pointed out earlier, this individual has done nothing wrong.

This individual already--

Unknown Speaker: No, but in the case of the public arrest the person who is being told to stay back 12 feet would normally... has done nothing wrong and would normally be able to walk up and down the sidewalk.

That person can go back the 12 feet or whatever and say, I don't want to stay here any longer, and walk away, but at least within a certain zone in which the officer is operating, the officer can control people who come along, and those people who come along are no more or less innocent, I suppose, than the passenger, so why shouldn't the passenger be in the same boat with the bystander?

Mr. Warnken: --Justice Souter, on first blush it may appear that those situations are similar.

I think the reason they are different is that the passenger, once being made to get out, if Your Honors draw the bright line there, as has been pointed out before, the police will push that limit and, in fact, once you have the valid stop of that vehicle, United States v. Sharpe and numerous other cases from this Court would probably permit about a half-an-hour, case-by-case basis, on how long you could detain, which means, Your Honor, that making the passenger get out would have the functional equivalent, particularly if there was a bright line and the police could do anything in any case, allowing the passenger to be detained, even though it started as--

Unknown Speaker: Well, the passenger will be detained during the stop unless under Justice Souter's hypothesis the passenger is free to walk away, but it's a voluntary thing.

It may not be too voluntary if you're out on the desert somewhere, but if you're in an airport, if you're being driven to the airport by somebody and you have a chance to catch a plane if you get a cab it might make quite a bit of difference.

But I don't see why it would necessarily follow that the passenger is detained for 30 minutes if the driver is detained for 30 minutes, under the hypothesis Justice Souter proposes.

Mr. Warnken: --If this Court were to draw a bright line, Mr. Chief Justice, wherein the only authority that law enforcement had as to the passenger when there is no evidence of officer safety issues and no wrongdoing on the passengers, if the bright line were only to require that individual to get out of the car momentarily, that would perhaps be permissible.

But, Your Honor, once we've got the stop, as Your Honor points out, in most cases the individual would not have the opportunity to walk away.

It simply wouldn't--

Unknown Speaker: But under your rule he'll be detained anyway.

He's sitting in the car rather than standing outside.

Mr. Warnken: --Your Honor, although it is not the rule we are asking for, I concede that Justice Souter's drawing... potential drawing of the bright line is the least onerous of the bright lines that would be possible.

Unknown Speaker: And then you--

--It doesn't help the mother with the baby in the snowstorm very much.

Mr. Warnken: Absolutely correct, which is why, Your Honor, we have urged that to draw a bright line at all will have the unintended effect of overruling Terry v. Ohio and its progeny, Mr. Justice--

Unknown Speaker: Isn't the practical answer to this case that officers really aren't going to ask everybody to get out.

They're only going to ask them to get out when they're a little worried about the high crime neighborhood, and the darkness, and so forth.

Then they've got Terry justification.

Mr. Warnken: --Your Honor, that is absolutely correct.

Unknown Speaker: Is that correct?

Do you know what the practice is in those States that have adopted a you-can-do-it-all-the-time kind of a rule?

Do they do it all the time, or don't they?

Mr. Warnken: Justice Scalia, there is no firm information.

We have tried to obtain training manuals from various jurisdictions, and it seems to be relatively vague, and seems to extend discretion to the officer.

Unknown Speaker: Mr. Warnken, I think that General Curran told us that the more usual practice is to tell the people you must stay inside.

Are you disputing that that's so in the cases that give the officer the option?

Mr. Warnken: Justice Ginsburg, I absolutely agree that the custom and usage within law enforcement agencies is, if given the option, to not have the people get out of the car.

Keep the people in the car.

Unknown Speaker: But you say that's no good, too.

Mr. Warnken: What I'm saying, Your Honor... Justice Scalia, what I'm saying is that to give the police the unfettered standardless discretion is the problem.

Unknown Speaker: To... either to keep them in or to make them get out, either one?

Mr. Warnken: Yes, Your Honor.

Justice Scalia, if we examine the case law we already have--

Unknown Speaker: I just want to make it clear.

In your view, the passengers have a right to exit whether... even if the officer does not want them to?

Mr. Warnken: --Justice Kennedy, that is correct, in that there is--

Unknown Speaker: I'm not sure we're just... we have to decide that case here, but it... I'd like to know what the rule would be.

That, it seems to me very... could be very dangerous to the officers.

Or if he was to say, well, we're getting out to see what's going on here, you've got two or three doors opening... I think that would be a very dangerous rule.

Mr. Warnken: --Justice Kennedy, let's examine the continuum.

I think that in that this Court must balance, in that this Court has already held that there is a legitimate and weighty interest in public safety for the officer, that's the one side of the equation.

The other side of the equation for balancing, Your Honors, is where must the Fourth Amendment and where must the individual interests of the individual be balanced to accommodate that need.

And what we are saying, Your Honors, is that the one place this Court's prior case law would not let that line be drawn and the one place reasonableness would not be accommodated, would be to draw the line all the way at the bottom, saying--

Unknown Speaker: What about the Attorney General's view?

What I heard her say was a brief, temporary stop.

I.e., you can tell the passenger to stay inside, you can tell the passenger can come out, as long as it's brief and temporary.

I mean, I take it... I don't know the minutes.

It sounded like minutes, not 30 minutes.

It sounded like the time it takes to write up a traffic ticket.

What about that as a line?

Mr. Warnken: --Justice Breyer, one of the potential problems with that as the law is that brief to all of us sounds like, stand outside for a few moments, and I think, Your Honor, that what would happen would be, under the case law from this Court, that will pretty much defer to the natural steps that an officer must take to effectuate a traffic stop, effectuate an arrest.

The case law has indicated there is no bright line on time.

Unknown Speaker: So what's your line, then?

Your line... is your line that if the man who is the passenger wants to stay in the car he can do it, regardless?

If he wants to get out of the car, he can do it, regardless.

Is that your line?

Mr. Warnken: Justice Breyer, that is... that is my line on this case.

Unknown Speaker: Yes, but I thought--

--No, it's not.

No, that's not your line on--

--You say he can keep him in if he has a reasonable suspicion, at least.

Sure.

Mr. Warnken: Your Honor, I was saying Justice Scalia, in this case--

Unknown Speaker: Ah.

Mr. Warnken: --because we already have plenty of case law that if there is any evidence of officer safety, if there is any evidence of--

Unknown Speaker: But what is that any evidence?

I mean, here there was evidence that the officer testified I saw the passenger, and even more so the person in the back seat, ducking, bobbing up and down and making suspicious movements.

That was held by the trial judge, or at least some judge in Maryland to be insufficient to allow for a Terry stop.

Mr. Warnken: --Justice Ginsburg, you are correct on both counts.

That is to say, the judge held it not to be sufficient here, but I certainly agree with Your Honor's implicit statement as part of that that on this record--

Unknown Speaker: But I would like to know what would be sufficient, since you said that a passenger fidgeting, ducking, making ducking motions, that wouldn't be sufficient.

What would be sufficient to allow the officer to apprehend the passenger?

Mr. Warnken: --Justice Ginsburg, I did not necessarily mean that that would be insufficient, because, Your Honor, if the trial judge had on this record determined that there was reasonable suspicion under Terry v. Ohio and its progeny, on this record, probably on appeal that would not have been found to be clearly erroneous.

Unknown Speaker: Well, you see, that... part of that illustrates that... and sometimes bright line rules actually help our citizens.

If we rule in your favor, and it becomes generally known the Supreme Court says you do not have to get out of car, and then there are some ducking motions and the officer says, out, and the citizen says I don't have to get out, what do we have?

We have litigation.

We have doubt.

We have uncertainty.

And this is not always helpful to the citizen.

Mr. Warnken: Justice Kennedy, this Court can easily paint... draw a line to fashion a rule that will fully accommodate the legitimate and weighty interest of Government in the safety of officers and still balance Fourth Amendment interests of the individual.

Unknown Speaker: But you just told me--

--You mean Terry--

--it would be case... it would be judge by judge, that on this very record one judge might have said, that's enough for Terry, and another judge might have said, no it isn't, and we would have this diversity in practice.

Mr. Warnken: Justice Ginsburg, ever since Terry v. Ohio and its progeny, that's what we have had, and yet the States, the officers, the courts have not had a problem with that.

Unknown Speaker: You don't have it in Mimms.

Mimms is a bright line rule.

Mr. Warnken: Mr. Chief Justice, that's correct, but the reason Mimms is a bright line rule is a combination of officer safety and the valid underlying stop of the driver.

Mimms really requires the both of them in order to work.

This, Your Honors, would be I believe the first time this Court would ever draw this type of bright line.

Unknown Speaker: Well, it might be the first time that we did it, but I'm not sure that it would be much of an innovation, if at all, because it seems to me that the argument you're making, and in particular in your response to Justice Breyer's last question, you're saying in effect that an officer who stops a car on a highway has less capacity to control the people around him who might hurt him or interfere with what he is validly doing than he does if he makes an arrest in a public shopping mall.

And if I'm wrong, tell me, but it seems to me you said he couldn't make him stay in the car, he couldn't make the passenger get out of the car, the passenger basically would have total freedom... in the absence of a Terry suspicion, articulable suspicion, the passenger would have total freedom to decide what to do.

If I'm walking down the street outside this Court and an arrest is going on, I presume I don't have complete autonomy to decide whether to walk up to the officer or between the officer and the person who's getting arrested and circle the scene, so why isn't it the case that on your answer the officer is in a worse position if he stops a car on the highway than if he makes an arrest on the sidewalk?

Mr. Warnken: Justice Souter, my answer to Justice Kennedy must be taken in the context of where I think this Court should fashion a rule.

I'm suggesting to Your Honors that if there is, on the limited circumstances where there is no evidence of officer safety, and where there is no--

Unknown Speaker: No Terry suspicion, in other words.

Mr. Warnken: --That is correct, and again, this Court has deferred to the first level fact-finders.

If the fact-finder finds that there is on that record no evidence of officer safety, no evidence of reasonable suspicion of criminal or administrative wrongdoing, then the best place to draw the line, I believe, is the Fourth Amendment would be violated to intrude upon the passengers.

Unknown Speaker: Okay.

Let's assume we've got an arrest going on on the sidewalk, and I used to be an Attorney General, now I'm a judge.

I'm interested in how these things work, so I want to get right up close and hear exactly what's being said between the officer and the person being arrested, so I walk up within 2 feet of what's going on.

Does the officer, consistent with the Fourth Amendment, at that point have the authority to say, uhoh, it's Souter.

[Laughter]

Let's get him back where he isn't going to mess things up.

Doesn't the officer, consistently with the Fourth Amendment, have the authority to tell me to get back 6 feet?

Mr. Warnken: Justice Souter, the officer probably would have that authority, because, Your Honor, in the alternative to our asking you to draw no bright line at all, what this Court could do to fashion the rule would be to say, all of our continuing case law exists wherever we have any evidence of reasonable suspicion or fear of officer safety, and in addition, we will do as we did in cases like Florida v. Wells and United States v. Sokolow.

We will say that even when there is no evidence on that record, we will defer to the expertise of administrative agencies, law enforcement agencies in a profile-type situation.

If, based upon their experience, a certain set of scenarios does cause what many courts have referred to as the heightened caution, the heightened caution may be--

Unknown Speaker: Mr. Warnken, this Court itself in dicta in Michigan v. Long referred to the right of officers to require all persons in a vehicle to exit, and many courts around the Nation have similarly thought that it... the Mimms principle extends to everyone in a vehicle at a traffic stop at least to get them out if the officer wants to get them out of the vehicle.

I don't think the Court has ever addressed the additional argument raised here by Maryland that it also includes a right to detain.

I don't think that has been addressed, really, has it?

Mr. Warnken: --Justice O'Connor, you are correct.

Unknown Speaker: Have we had any particular problems with the many jurisdictions that say Mimms does allow an officer to require everyone to get out?

Have there been problems you can refer to, or statistics that you can indicate that this is a worse situation in such jurisdiction?

Mr. Warnken: Justice O'Connor, I... as to your last part of your question, I cannot, and that is because the way the statistics appear to be maintained on a national level, it includes all types of situations such as stops as well as pursuits.

Unknown Speaker: But you admit that many jurisdictions have followed what this Court at least said in dicta in Michigan v. Long and allowed officers to order people out--

Mr. Warnken: Justice O'Connor--

Unknown Speaker: --in a traffic stop.

Mr. Warnken: --Justice O'Connor, you're absolutely correct, there are a number of jurisdictions, as General Curran pointed out--

Unknown Speaker: Yes.

Mr. Warnken: --that believe that your earlier decision--

Unknown Speaker: Right.

Mr. Warnken: --in Mimms was extended to--

Unknown Speaker: And that doesn't appear to have offered any particular problems.

I think what really troubles me is the point about how long can such a passenger be detained?

Mr. Warnken: --Justice O'Connor, you're correct that there's no hard evidence as to one way or the other.

There is no hard evidence that having the power since Mimms has caused officer safety to be affected negatively or positively or not affected at all.

Your Honor, this Court's dicta in Michigan v. Long was just that.

The Court had before it a very different context, determining whether, when you had not only reasonable suspicion of criminal activity but you also had reasonable suspicion of armed and dangerous.

In that scenario, the Court was merely addressing what would be the scope of that armed and dangerous, and the Court adopted the rationale from Belton to say that it would be the lunge, reach and grasp.

Unknown Speaker: Mr. Warnken, I'm not sure I agree with you... in this balancing of the various interests you portray the passenger as being, you know, a wholly innocent individual as much a stranger to the whole incident as somebody who was standing on the curb and watched the traffic violation.

But in fact, unless you're being kidnapped you have voluntarily placed yourself in a vehicle driven by someone whom you know, and who violates the speed limit.

Why isn't it a reasonable consequence of that that when you do that you may trust this driver with a certain amount of your inconvenience?

He may cause you to have to get out of the car sometimes, even in the rain.

Mr. Warnken: And Justice--

Unknown Speaker: Serve you right for driving with this fellow, or not saying, you know, you're going too fast, or whatever.

It's really not a totally innocent person as, oh, gee, you know, how did I get here?

Mr. Warnken: --Justice--

Unknown Speaker: He drove with a person.

Mr. Warnken: --Justice Scalia, he may or may not be a totally innocent person.

He's certainly not a total stranger in most cases, as Your Honor just correctly pointed out.

I dare say that probably the vast, vast majority of the people in this room within the last 3 to 4 hours have been either a driver or a passenger in a public or private conveyance, and I think when we get in a vehicle as a passenger we certainly have an expectation that in the event that the driver were to violate a traffic rule or regulation that in fact that vehicle will be stopped.

What we don't have is an expectation that we can be compelled, demanded to get out of the vehicle and, were we to resist that, we could be forcibly taken from the vehicle.

Unknown Speaker: Maybe if you had that expectation passengers would exert some influence over the drivers to drive more safely.

For Pete's sake, it's raining out.

I don't want to have to get out of the car.

[Laughter]

Mr. Warnken: Mr. Chief Justice and Justice Scalia, that we do have an expectation--

Unknown Speaker: What we really want is more back seat drivers, I guess.

[Laughter]

Mr. Warnken: --We do have an expectation that we will not be arrested, and I think if you have unfettered discretion, standardless discretion, no requirement as in Wells or Sokolow that the agency promulgate any, some guidance to its officers, you may well have the equivalent of Dunaway v. New York, where this Court has to say that the way an individual has been forcibly detained would become the equivalent of an arrest.

Unknown Speaker: Wouldn't one expect to be some kind of witness to what occurred?

For example, one would have knowledge whether the driver had a seat belt, whether the driver was engaged in conversation... one would be a witness to what is a violation of the law.

Mr. Warnken: Justice Ginsburg, I think the example you give and the example many members of this Court have given proves the very point that Justice Stevens noted in his dissent in Pennsylvania v. Mimms, and that is, passengers are not fungible goods.

There are a myriad of situations, and in fact we probably have... and we cite the statistics in our brief as to how we get to this number, but you probably have about 25 millionish passengers in this country per year who are, in fact, in a vehicle where there is no evidence of officer safety and no evidence of any wrongdoing other than a traffic violation of the driver, and that is why--

Unknown Speaker: Where do you get the 25 million figure from, since figures seem to be hard to come by in this situation?

Mr. Warnken: --Your Honor, as we conceded in our brief, Mr. Chief Justice, it was an interpolation, taking... using Maryland as a State where statistically it does have 1/50th of the population, 5 million out of 250 million, and taking the number of traffic cases that actually get as far as court to be docketed, and then assuming, as we did in our brief, that on the average there would be a passenger in a car probably one time out of two.

And of course our numbers could be wrong, but the point is, it shows the extent to which the single biggest probably police-citizen encounter in our society today is a vehicle.

We don't have the officer that walks the beat.

We don't have the constable in the way we once did, and most of us, when we next meet a law enforcement officer when that individual is in the line of duty, it will be when we are driver or a passenger in a vehicle.

Unknown Speaker: May I ask if... I just don't remember your brief well enough.

Do you discuss the hypothetical that Justice Souter gave you about maintaining order near an arrest scene?

Mr. Warnken: No, Justice Stevens.

Unknown Speaker: Isn't the proper distinction there... and I'd just like you to comment on it, because I've trying to think it through as he raised the question... that in that situation nobody's seized?

They're told to stay away.

In your situation, the passenger is seized.

He's told to stay where he is, which is a very... at least analytically a different concept.

Mr. Warnken: Justice Stevens, that's correct.

Unknown Speaker: I had not understood Justice Souter's hypothesis... I thought his hypothesis you can be told to get out of the car but you can't be detained.

Once you're out of the... once you've complied with that request, you're free to leave, unless there's... there is some Terry suspicion.

I didn't express that when I put the hypo to you as distinct, I think, from the way I put it to Ms. Reno, but that's what I was assuming, that the passenger could go if he wanted to.

But if the passenger chose to stay at the scene, the officer could say either, you stay in the car or you get out.

That was the hypothesis that I--

--Well, that's the hypothesis I was talking about, too, because by giving that order the police officer is exercising control to tell the person where to be at that particular moment by getting out of the car where he would rather stay in, but that's not true of the bystander who can't approach the scene.

Mr. Warnken: Justice Stevens and Justice Souter, I certainly concede to this Court that were this Court to fashion a rule saying, State of Maryland, we reject your absolute, bright line, unlimited, unfettered discretion in all circumstances, but we will draw a line that would permit unfettered discretion, meaning a bright line to the limited extent of having the passenger exit the vehicle, and then the passenger having the complete discretion whether to get back into the vehicle, whether to leave, or any other reasonable steps the officer would take--

Unknown Speaker: Well, how about getting identification of who the passenger is and where they could be reached if they're needed to be a witness?

Mr. Warnken: --Your Honor, Justice O'Connor, I think the case law from this Court already would probably give an officer, if that officer had reason to believe that an individual were a witness to the crime, to try to seek that information.

Unknown Speaker: Well, we're talking about a traffic stop.

Obviously, the passenger is a witness to speeding, or making a wrong turn, or something like that.

Mr. Warnken: Justice O'Connor, that is correct, which is why I stated earlier that this Court could fashion a line between the one end of the spectrum that we would like to see, which is, you need reasonable suspicion in each case, and the other end of the spectrum that the State of Maryland asks for, which is, you need nothing and anything, to say, the line is as follows:

Our existing case law applies.

Any reasonable suspicion of any wrong activity or officer's safety, of course the officer can then take reasonable steps; in addition, take all of these hypos that we discussed today and defer that back to the law enforcement agencies for them, based upon their expertise, just like you did in Sokolow, just like you did in Wells, for them to say, based upon their experience as experts in the area, what are the kinds of situations that truly create a heightened caution that would permit some type of activity, notwithstanding the failure to have any facts in that particular case.

And in fact that's what this Court did when this Court ruled unanimously in Wells that it was not proper to do an inventory search when there was simply no guidance from the agency to the individual officers.

This Court referred it back, and since then agencies have had no problem examining those scenarios and coming up with situations just like agencies have since Sokolow in the profile cases.

What are the kinds of situations, based on its experience as a law enforcement agency, that makes it reasonable in the following circumstances, following types of situations, the following is likely?

This Court has consistently given deference to administrative agencies, their expertise in the area, and we are not suggesting that be any different.

What we are suggesting, Your Honor, is, when you weigh out the interest of law enforcement and safety and you weigh out individual rights, you can't give standardless, unlimited discretion to individual officers.

The best you should do is to give that discretion to administrative agencies.

Unknown Speaker: Which might be different in every State, and suppose... are you saying that if Maryland had a manual and said, after 5:00 p.m., it's beginning to get dark, the officer at that time can order the passenger out, and then if they had that rule, then we would defer to it and your client would legitimately have been asked to get out because it was after 5:00?

Mr. Warnken: Justice Ginsburg, that is probably correct.

This Court has recognized the 50 little laboratories, and we know that in inventory search cases, we know that in profile cases, basically that's what this Court has done now.

It has said that even though you don't have anything individualized in that case, if you can draw us--

Unknown Speaker: Which would mean that if that's what your answer is, that all they need is a manual that says after 5:00 this is okay, then the next client like yours loses, because in... with your client it wasn't a question of detention.

When your client exited the car the contraband exited with him, right?

Mr. Warnken: --It... yes, Your Honor.

Yes, Justice Ginsburg.

If Your Honors were to draw the line, for example where Justice Souter was suggesting earlier, or raising as a possibility earlier, of simply exiting, and then if this Court later decided that in fact that was such as to be reasonable, then in fact that would be permissible.

But of course, Your Honor, these standards that would be made by agencies, just like the profile cases today, would, of course, be subject to review as to whether they were unreasonable and extended too much or not sufficient guidance to individual officers.

Officer safety is at issue, but it cannot take all Fourth Amendment rights away.

Unknown Speaker: Thank you, Mr. Warnken.

Mr. Warnken: Thank you, Your Honors.

Unknown Speaker: General Curran, you have a minute remaining.

General Curran, can you tell me why we... I resent being put in the position of deciding this case on speculation, as lawyers sometimes... you look at the ceiling well, if we do this, this will happen.

You're telling us that it will increase police safety if we adopt this automatic rule.

None of the briefs... and there's a brief here by 20 States or so... make any attempt to compare the assaults on police in the States that have the rule you're urging us to adopt and the States that don't have that rule, and that's the crucial question.

We know we're going to inconvenience citizens to some extent.

We don't know whether we're going to increase police safety.

Why... aren't those statistics available?

Why doesn't somebody come and say, this is the proof of what we're saying?

Rebuttal of J. Joseph Curran, Jr.

Mr. Curran: May I answer, Chief Justice--

Unknown Speaker: Yes.

I don't understand that.

Mr. Curran: --Justice Scalia, you are right, we don't have the specific numbers, but may I infer from information we do have.

Since Mimms, with the authority upheld for the police across the Nation to order the driver out, and since some 25 jurisdictions have believed that Mimms also conveys to the passengers, we do have data that shows that the percentage of deaths in traffic incidents have been reduced from about 30 percent to somewhere around 13 percent, so there is an inference that Mimms and its progeny within the States has, in fact, worked.

Chief Justice Rehnquist: Thank you, General Curran.

The case is submitted.