In this article, we explain passenger rights in a traffic stop in Illinois. The United States Supreme Court has ruled that passengers in a vehicle which has been stopped by police have been “seized” for purposes of asserting their fourth amendment rights against unreasonable searches and seizures. Therefore, passengers generally have the same rights as the driver when stopped by police for a traffic violation. Those rights include the following:
While officers need probable cause to perform a full search, they need only satisfy the lesser requirement of reasonable suspicion for a brief investigatory seizure or cursory search. This scenario is best illustrated with traffic stops - officers can stop a vehicle if they have reasonable suspicion that crime is afoot. This can be accomplished for the officer by having a driver swerving across lanes (leads to reasonable suspicion that driver is intoxicated) or by a vehicle failing to stop once the officer hits the lights and siren (innocent person wouldn’t run).
When police stop a vehicle for a traffic violation, they can immediately, and without consent, perform a “plain view” search of any portion of the vehicle. In other words, if an officer stops a vehicle and seems a gun wedged between two seats or a bag of what appears to be drugs in the center console, the officer then has probable cause to perform an arrest.
Once an officer makes a lawful arrest of the driver, the officer can perform a search incident to a lawful arrest. This means the officer can perform a full search of the vehicle so long as the officer had the requisite probable cause to make the arrest in the first place.
Example: A driver is ordered out of his vehicle and a full search was held lawful even where the arrest was related only to a traffic violation.
While a passenger of the vehicle in the above scenario may still remain silent, contest the stop, etc, if the officer has the authority to perform a search incident to lawful arrest, the area of the vehicle that the passenger is/was located is subject to the search as well.
It is important to note that regardless of the stop, an officer can order both the driver and passenger(s) out of the vehicle at any time and both need to obey the officer. Typically, the justification for the officer’s commands is for the protection of the officer’s safety - this is called a cursory protection search. The rationale for this is that if the passenger is allowed to remain in the vehicle while the officer searches the driver, and, let’s hypothetically say there is a knife or gun in the vehicle, the officer is then vulnerable to the passenger having access to and using that weapon.
Who can an officer require to produce identification?
As many people are aware, when stopped, officers typically always ask for your driver’s license and insurance. This is the usual response from officers as they can then check your personal information and license plate number for any outstanding tickets, warrants, etc. But can officers request the same information from passengers in the vehicle?
A United States Court of Appeals decision in Arkansas (Stufflebeam v. Harris) recently held that the officer CAN request the passenger to produce identification. However, if the officer has no reason to contact the passenger regarding the ongoing investigation the passenger is not required to produce the identification.
However, whatever the reason for the initial traffic stop, the officer may have alternate reasons to ask the passenger to produce identification. For example, the passenger may match the description of a wanted person and the officer wishes to confirm whether or not the passenger is the wanted person.
However, for those looking to avoid any potential conflict when stopped by police, whether the driver or passenger, the best course of action is to obey the officer’s commands and, when asked, produce identification. As mentioned above, officers can use a person’s conduct in continuing to speed away after the officer has turned the lights and sirens on signaling for the person to pull over as reasonable suspicion that crime is afoot. Similarly, it stands to reason that the same analysis can be applied to a person who refuses to produce identification when the officer requests it. In the scenario, it would appear once the person refuses to produce identification the officer would then have reasonable suspicion the passenger is hiding something incriminating, thereafter order them out of the car, and perform a cursory protective search of the person.
To put it plainly, it reduces the potential for conflicts, and therefore the need for an attorney, with the police if an individual is cooperative and does not cop (pun intended) an attitude or become belligerent with the stopping officer.