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Police Ordering Occupants of Car out of Vehicle Justified under Facts


by in Criminal Appeals

State v. Danny Mai, ? N.J. ?, 2010 N.J. LEXIS 393 (May 6, 2010) – Appellate Division judgment reversed, conviction reinstated. “Responding to an early morning hours radio call of a ‘man with a gun,’ police officers approached a double-parked van containing five occupants; the van also was surrounded by a half-dozen young men.

Based on that obvious traffic violation, the police detained the van. Fearing for his and his fellow officers’ safety, one of the police officers opened the van’s passenger-side sliding side door as a protective measure before actually ordering the passengers to exit the van. In so doing, van was consistent with the description of a ‘man-with-a-gun’ earlier broadcast over the radio. That passenger was told to step out of the van and, as he did as instructed, another police officer observed a firearm on the floor of the van where the passenger was seated.

A loaded weapon was retrieved and the passenger was arrested; a search of the passenger revealed a gun holster and a second loaded ammunition magazine fitting the retrieved weapon…. The standard for determining whether, in the context of a traffic violation, a police officer may order that a passenger alight from a vehicle previously was set forth in State v. Smith, 134 N.J. 599 (1994)[i.e., that] ‘that an officer must be able to point to specific and articulable facts that would warrant heightened caution to justify ordering the occupants to step out of a vehicle detained for a traffic violation.’… In the realm of defining reasonable searches and seizures, no meaningful or relevant difference exists between the grant of authority to order an occupant of a vehicle to exit the vehicle and the authority to open the door as part of issuing that lawful order.

Plain logic demands that the principles that govern whether a passenger of a vehicle lawfully can be ordered out of the vehicle must apply with equal force to whether a police officer is entitled, as a corollary and reasonable safety measure, to open the door as part of issuing a proper order to exit…. We therefore hold that, in the aggregate, there was sufficient credible evidence presented in the suppression hearing to conclude that the ‘facts in the totality of the circumstances … create[d] in a police officer a heightened awareness of danger that … warrant[ed] an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car.’ Smith, supra, 134 N.J. at 618. Those facts likewise justified the objectively reasonable belief that, as a precautionary measure, the door to the vehicle needed to be opened by the police. In those circumstances, both opening the door and ordering the passengers out of the vehicle were proper and lawful.”






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