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You Just Got Pwned!

Most of my writing lately has had to be devoted to motions. As California courts increasingly ignore the law, it seems more important — I’m not sure why, perhaps at least for future generations, sort of “a la the Declaration of Independence” — to document things, rather than try to wing it with the more ephemeral oral arguments.

In the course of working on a motion, I ran across this new argument, which can only be titled “You Just Got Pwned!”

In Pennsylvania v. Mimms (1977) 434 U.S. 106, the United States Supreme Court held it proper for an officer to order a motorist out of an otherwise lawfully stopped vehicle. This added intrusion into the motorist’s liberty is so minimal when compared with legitimate concerns for officer safety that the order is reasonable even when routinely made in a simple traffic stop. (Id. at p. 111.) Subsequently the United States Supreme Court also held that the bright line Mimms rule applies equally to ordering passengers out of vehicles pending completion of routine traffic stops to promote officer safety. (Maryland v. Wilson (1997) 519 U.S. 408, 414-415.) The High Court in Wilson held that a police officer for reasons of officer safety may, “as a matter of course,” order the passengers of a lawfully stopped car to get out of the vehicle. (Id. at p. 410; see also, People v. Hoyos (2007) 41 Cal.4th 872, 892-893.)

But what if the officer doesn’t like people outside of the car? I mean, just because one officer feels the promotion of “officer safety” requires people to get out of the car, doesn’t mean every officer thinks so. Some officers might think it “promotes officer safety” for passengers to stay in the car.

No problem!

These ruling [sic] have been extended by California courts to permit officers to also order passengers to remain seated during the stop. (People v. Castellon (1999) 76 Cal.App.4th 1369, 1374-1376.) Additionally, for safety reasons officers may order a passenger who begins to exit the car to get back inside. (People v. Vibanco (2007) 151 Cal.App.4th 1, 9-13.)

What if they like you out of the car, but they really are enjoying your company, or the opportunity to have their own living toy dolls to position however and whereever they want?

No problem!

Similarly, the officers may order all passengers to get out of the car and sit on the curb during the traffic stop despite the lack of reason to suspect them of wrongdoing. (Ibid.)

Of course, this gives the passengers standing to challenge the stop and any evidence seized during the stop on Fourth Amendment grounds and may even lead to lawsuits against officers for rights violations. Nevertheless,

[t]he propriety of the officer’s order that the occupants either alight or exit the vehicle turns only on whether the initial traffic stop was lawful. (Maryland v. Wilson, supra, 519 U.S. at p. 410; People v. Saunders (2006) 38 Cal.4th 1129, 1134-1135.) Finally, [“][c]onsistent with the Fourth Amendment, detention following a Mimms/Wilsonorder may continue at least as long as reasonably necessary for the officer to complete the activity the Mimms/Wilson order contemplates.” (People v. Hoyos, supra, 41 Cal.4th at p. 894 [here during the period of time the car was inventoried prior to impound].)

Incidentally, the brief from which I’m quoting likes this “period of time the car was inventoried prior to impound” for the case that prosecutor is dealing with, even though no inventory was ever taken; no claim of an inventory search was ever made until this brief was written; no inventory sheet was ever produced.

What I particularly like about this brief is the obvious point it makes about “officer safety.” That short phrase has become a kind of talisman for the police. Utter those magical words and the courts will sanction anything an officer does: constitutions, statutes and precedential law be damned.

But lets not forget about the officer’s discretion to decide whether his order that someone remain inside the car, or exit the car, is necessary for officer safety; because as I noted, not all officers will agree on whether they want the people inside or outside. Some will want people standing; some sitting; some folded in half. But only if Officer Simon Says. Because officer safety is whatever the officer says it is.

The same thing used to happen with another government which famously ignored the rule of law:

By refusing to protect citizens against government regulations, they gave the police a free hand, while at the same time granting the police the sole right to define what was legal. (Ingo Müller, Hitler’s Justice: The Courts of the Third Reich (1991) 49.)

Hitler’s courts clearly recognized the need to allow police officers to be the final arbiters of what was necessary and legal. California’s courts are just now beginning to get with the program.

The bottom line of this prosecutor’s argument, though, is this: you’re in a car which was stopped on the road? Driver or not — lawbreaker or innocent bystander — you just got pwned!