Standing in the Passenger Seat
Muldoon & Getz
144 Exchange Boulevard
Rochester, NY 14614
When the police effectuate a traffic stop, both driver and passengers are seized. A traffic stop communicates to a reasonable passenger that he or she is not free to terminate the encounter and move about at will. Arizona v Johnson, 555 US 323 (2009). When a car is lawfully stopped, the police may order passengers out of the vehicle as well. People v Robinson, 74 NY2d 773 (1989); People v Harrison, 304 AD2d 376 (1st Dept 2003); People v Willis, 66 AD3d 926 (2d Dept 2009). In a routine traffic stop, a police officer may perform a patdown of driver and passengers upon reasonable suspicion that they may be armed and dangerous. Arizona v Johnson, supra.
Pursuant to a lawful traffic stop, the police may constitutionally require the driver and all passengers to remain in the vehicle until the traffic stop is concluded. People v Forbes, 283 AD2d 92 (2d Dept 2001); see also, People v Rivera, 286 AD2d 235 (1st Dept 2001). A request for the ID of passenger is a minimal intrusion. People v Jones, 8 AD3d 897 (3d Dept 2004). Where a passenger who has committed a minor violation does not produce proof of identification, the police may arrest, frisk and take the person to a police station. People v Taylor, 57 AD3d 1504 (4th Dept 2008). Where the police stop a vehicle to arrest the driver, the search of the passenger must be based upon probable cause. People v Packer, 10 NY3d 915 (2008).
All occupants have standing to challenge an improper stop of the vehicle. But the roles of driver and passenger in moving to suppress may diverge: both may seek to suppress evidence based upon the stop. If the stop is found improper, the search is improper and suppression will be granted for both. If the stop is upheld as proper, the driver has a reasonable expectation of privacy and can still challenge the search of the vehicle. But the passenger, if the stop is upheld as proper, has no standing to contest the search of the vehicle, having no reasonable expectation of privacy in the vehicle.
A passenger who does not have a possessory interest in the vehicle must establish standing to challenge the search of the vehicle. See People v Sanchez, 64 AD3d 618 (2d Dept 2009); People v Rosario, 64 AD3d 1217 (4th Dept 2009). "Standing" is having a possessory interest in the place searched or thing seized. A passenger could be accorded "automatic standing" to challenge the legality of the search only if the prosecution relies solely on the automobile presumption contained in Penal Law 265.15(3). People v Millan, 69 NY2d 514 (1987).
A traffic stop is a seizure of everyone in the stopped vehicle. When a vehicle is illegally stopped by the police, no evidence found during the stop may be used by the government against any occupant of the vehicle unless the government can show that the taint of the illegal stop was purged. All occupants have standing to contest the stop and to suppress under the fruit of the poisonous tree doctrine. Brendlin v California, 551 US 249 (2007); US v Mosley, 454 F3d 249 (3d Cir 2006).
Before impounding a vehicle, police are not required to ask whether a passenger is licensed and authorized to drive the vehicle. People v Walker, 2012 WL 5834009 (2012).
© 2012 by Gary Muldoon