The other day, a friend was stopped and cited for a speeding violation. During the interaction with the officer, the passenger window (which is the side he approached the vehicle from) would only roll down a few (3 -4in) inches due to it being broken. It was enough of an opening to clearly speak with officer and conduct his “business.” However, the officer demanded that it be rolled down further, and when explained that it could not be, he inquired abut the drivers side window… It was broken and thus not able to roll down at all. He then demanded that I open up the drivers side door?
My question is did he have the “right” to make my friend open up my door? If I was in my home for example, I have no obligation to open the door, do I? Or is the difference in the fact that my friend was being cited ( a form of arrest??).
Of course IANAL, but I would say that there’s a huge difference between opening your home’s door to police vs. opening your car’s door.
You and your car are on & using public roads, agreeing to abide to public laws, with a greater potential to possibly threaten the public good. If a police officer decides you’re doing something wrong, yes, I would say you have much less of a right to privacy behind your car’s doors compared to your home’s. The sanctity of the home goes back even farther than English Common Law, while automobiles are a relatively new and very different thing. If you think your neighbor is a terrorist and is building pipe bombs in their basement, it’s going to take a big burden of proof for the police to get inside and check. If you’re out driving and swerving drunkenly, or speeding excessively, or have obviously expired tags, or doing drugs openly in your automobile etc. those are all meeting burdens of proof in and of themselves.
I was in a car where the cop opened the door himself one time. This was in Texas, early 1970s. I was traveling from West Texas to Austin as a passenger in a car that was part of a small convoy. It was my high school’s drama club traveling to Austin to compete in the state play competition. I was just going along for the ride. The girl driving the car – it was hers – was a fellow student, in the front passenger seat was the wife of the drama teacher, and then the backseat had myself and another male student. The convoy got separated, the girl was speeding, and we got pulled over.
The girl asked me to hand her her purse, which was on the backseat floor by my feet, because that’s where her driver’s license was. I handed her the purse, she fished out her license, then she handed the purse to the teacher’s wife. The cop came around to the passenger side, where the wife was, opened the door himself, grabbed the purse and started fishing through it. He said we’d been “passing it around suspiciously.” Turns out she did have a lid of weed there, and the cop found it.
The girl got busted. The only reason the rest of us didn’t was because the teacher’s wife was in the car with us. The girl was from a wealthy family, and the arrest and charges got squashed. The lawyer took my deposition and everyone else’s in the car as to what happened. I know this was Texas and the early 1970s, but the cop was probably still lucky not get sued.
In some jurisdictions that works, in some it can get you beaten senseless. But the general principle is correct.
When you get stopped for something minor like a light being out or speeding, its often a case of the police going fishing from there. And if you have a bad cop, you are really and truly screwed at that point. “Do you have any weapons? Mind if I look?” and after a check of the back floor under your copy of Milton he finds a screwdriver and all of a sudden its “I thought you didn’t have any weapons?”
I’m not the extreme that the aphid in the video is but there is one thing I’ll do - if I’m asked to get out of the car, I’m locking the doors behind me. Call the K-9 and let him/her sniff, get a warrant. But at the stage you want me out of my seat, this isn’t friendly or routine any more and I’m taking the steps I can.
The Supreme Court has held that it is reasonable for police to be able to order you out of your car during a lawful stop. The two court cases are Pennsylvania v Mimms which covers the driver and Maryland v Wilson which covers passengers. Just opening the door is a much lesser imposition than ordering you out of the car.
True; opening the door could be a lesser imposition. But its also a different imposition and may not be covered by the two cases you cite. If I read the cases correctly, the reasoning for getting you out of the car is officer safety - getting you away from any possible weapon you may have there or you using the car itself as a weapon. It is not to abridge your right against unreasonable search. Hence the desire/need to lock your doors as you exit and basically keep your windows mostly up. If you leave them open, or leave the door open, their is an “implied consent” and its easier for the officer to nose around and find something he can justify as probably cause.
I’m coming off a little looney here so let me explain. With 99% of the cops out there and stops, I’m going to do like most people and co-operate. But if I get my “hinky feeling” all bets are off and I’m ready to play hardball.
Two examples: I was riding the Sportie on some deeply grooved highway. My usual approach is to drift slightly from the left side of my lane to the right and back rather than trying to ride with the lines and having them move me around. I’m heading along, basically at the speed limit, and the Statie behind me decides to light me up. I know what’s in his brain - is this dude riding drunk. I shut everything down, pulled my helmet and keys, got my paperwork out and was perfectly nice. I talked enough that he could tell there wasn’t any alcohol on my breath and explained the weave pattern so he knew I was basically harmless and responsible. When he asked “Do you know why I pulled you over” something came over me and I channeled the spirit of my favorite comic and said “Because I’m black?” (I’m not – I’m whiter than the underbelly of a newborn gosling) He froze, swallowed his laugh, and just walked back to his car and drove off.
Case two: I’m riding along and just as I passed an intersection a “local yokal” lights up and pulls in behind me. I was basically at the speed limit, hadn’t done anything I was aware of (and I’m a damn careful rider), and pulled over before we reached the next block. He comes at me all attitude first. The hair on the back of my neck is up and I’m not liking things so I went into one word responses or no response. Still perfectly polite and civil - just not totally friendly. He decided he wanted to see inside my saddlebags and I decided it wasn’t going to happen. He blustered and threatened just like the cop in the video right down to threatening to call a K-9 to take a sniff. I said “Cool! I love dogs.” and basically stayed quiet. Five minutes later his supervisor arrives, talks to him and comes to talk to me for a minute. The supervisor sent Officer Supertrooper on his way and thanked to me.
I’m not one to walk around all the time “my rights, my rights, my rights”. But for the 1% of the time when you really need them, its worth knowing what they are.
I think you’re probably right to think this is lawful on these facts, but I don’t think Mimms requires that conclusion. In Mimms, the Court reasoned that the invasion of privacy was small because the person’s body was already largely exposed through the window, and the gain to security was large, because cars are sometimes struck when pulled over and people can reach weapons while sitting inside a car more easily than when outside. Their driving concern seemed to the security rationale in getting the driver way from his possessions, which is diminished if not negated when you simply order the door opened. And the privacy interest might be different here, if more of the interior is exposed.
Also, many states have rejected Mimms as unpersuasive as to their state constitutional privacy protections. So such a search might still be unlawful in a given jurisdiction even if Mimms applied.
True; opening the door could be a lesser imposition. But its also a different imposition and may not be covered by the two cases you cite. If I read the cases correctly, the reasoning for getting you out of the car is officer safety - getting you away from any possible weapon you may have there or you using the car itself as a weapon. It is not to abridge your right against unreasonable search. Hence the desire/need to lock your doors as you exit and basically keep your windows mostly up. If you leave them open, or leave the door open, their is an “implied consent” and its easier for the officer to nose around and find something he can justify as probably cause.
And a badly acted “informational” illustration.
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No there is no implied consent. There is either consent or not.
In the OP there is no search.
If you refuse to open the car door you can be ordered out of the car completely and that is legal under Mimms.
Sure there is. A “search” is any invasion of a reasonable expectation of privacy. That includes ordering the opening of a car door, assuming that reveals areas of the car not otherwise visible through windows (as it would on my car, and many models).
Wrong. Mimms only means ordering them out of the car is legal under the Fourth Amendment of the US Constitution. It doesn’t make it legal under state law, and it would be illegal in Vermont, Massachusetts, and probably other jurisdictions that don’t follow Mimms as to their state constitutional protections.
Moreover, your premise, that opening the door is included in ordering the driver out, may not necessarily follow for all the reasons I gave in the post to which you responded.
