What are your rights as a passenger during a traffic stop conducted by police
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IDAHO FALLS — Imagine you are in Blackfoot and your date picks you up in his Ford Pinto. You’re headed to the Idaho Potato Museum to compete in a Mr. Potato Head race.
On the way to the museum, though, your date decides to race the guy who is stopped at the light next to him. The police pull you over.
You weren’t the one racing; you were just a passenger. What are your rights in this scenario?
First off, contrary to popular belief, police are permitted to detain you and direct your movements even if they admittedly have no reason to suspect you of any crime. This is because of the United States Supreme Court case Maryland v. Wilson, which clarified that officers could order passengers out of a vehicle for “officer safety” purposes.
Additionally, lower courts have clarified that this means that officers can tell you where to stand or sit. Courts have further held that officers can prevent passengers from exiting a vehicle during a traffic stop. This means you are not free to leave unless, of course, the officer allows you to leave.
But can an officer search a passenger against their will?
The short answer: no, not unless the officer has a warrant or asserts a recognized exception to the warrant requirement.
That said, it has become evident from reviewing hundreds of hours of body-worn camera footage that officers in Idaho like to perform pat-downs for weapons on all occupants in a vehicle, at least if those occupants have been ordered out of the vehicle. This is commonly seen during automobile searches for contraband.
The problem is, officers cannot legally pat down a passenger unless they have reasonable, articulable suspicion that a particular passenger has already, is currently or is about to commit a crime and is armed and dangerous. The officer needs all three conditions to be met before requiring a passenger to submit to a pat-down.
Police officers are also trained to ask questions designed to drum up information regarding illegal activity unrelated to the actual basis for the traffic stop.
For instance, officers are trained to ask where you are coming from. It is surprising how many people readily admit they are coming from the bar or from Jackpot, Nevada. Just remember, you do not have to say anything to the police, and it is generally best not to volunteer any information.
As a passenger in Idaho, you absolutely do not have to identify yourself during a traffic stop unless, of course, the officer claims to have reasonable, articulable suspicion that you have committed a crime.
The reasoning for this stems from a Ninth Circuit Court of Appeals opinion titled United States v. Landeros. For example, if an officer states that the basis for the stop is speeding, a passenger generally would not have to provide identification. But if an officer says he smells marijuana or sees an open container, that is a different story.
Now, technically, Idaho does not have a stop-and-identify statute, but local jurisdictions (i.e. the City of Nampa) sometimes do, and some local judges have held that Idaho’s obstruction statute can act as a stop-and-identify statute.
On the other hand, some judges have held the exact opposite. To err on the side of caution, if an officer indicates he is investigating you personally, it is best to identify yourself.
With all of this in mind, if you are involved in a traffic stop, the best advice is to always comply, but never consent. For example, if an officer asks if he can pat you down for weapons, politely decline. But if he orders you to submit to a pat down, do not resist on the basis that you think he lacks reasonable suspicion.
If it turns out the officer lacked reasonable suspicion, your lawyer can seek the appropriate remedy, whether it be suppression of any evidence found in your pocket or a civil lawsuit for monetary damages.
This column provides general information and is not to be considered legal advice. Readers with specific legal questions should consult an attorney. The Idaho State Bar Association provides a lawyer referral service through its website at isb.idaho.gov.
Adam J. Ondo is an associate attorney at Tatum Wysocki Law P.C., where he litigates criminal and child protection cases on behalf of defendants. He is also an avid hunter and participant in multiple shooting sports.