State v. Bacome, 228 N.J. 94 (2017)


The U.S. Supreme Court has held that police officers may order both drivers and passengers to exit a lawfully stopped vehicle as a matter of routine without violating the U.S. Constitution’s prohibition against unreasonable search and seizure. New Jersey, however, has maintained a distinction and offered more protection to passengers under the New Jersey Constitution. While police may order drivers to exit lawfully stopped vehicles as a matter of course, an officer may order a passenger out of a vehicle only where a police officer can identify “specific and articulable facts that would warrant heightened caution.”

In State v. Bacome, 228 N.J. 94 (2017), two police officers followed a vehicle in and out of Newark. According to the officers, the two men in the car were well-known drug dealers, and the officers believed that the men had driven to Newark for a drug deal. After observing the passenger not wearing his seat belt, the police officers pulled the car over. One officer said that as he approached the car, he saw Bacome, the driver, lean over and make a movement that suggested he was reaching under his seat. The officer ordered Bacome out of the car, and the other officer ordered the passenger out of the car. After the passenger exited the car, the officer allegedly saw drug paraphernalia in plain sight and then, after the passenger consented to a search, allegedly found drugs.

In a split decision, the Appellate Division reversed the trial court’s order that denied a motion to suppress and concluded that the detectives failed to prove the heightened caution requirement as to the passenger. The majority held that stopping the vehicle for a seat belt violation was simply a “ruse” that allowed the detectives to conduct a narcotics investigation. The dissent argued that the rule that normally prohibited police officers from ordering passengers to exit the vehicle should not apply because it was the passenger, not the driver, who engaged in “culpable” conduct by not wearing a seat belt.

Because of the split appellate panel, the state appealed as of right to the New Jersey Supreme Court. The state argued that police officers should be permitted to order both drivers and passengers to exit lawfully stopped vehicles as a matter of right, without meeting the heightened caution standard.

Pashman Stein Walder Hayden P.C. filed an amicus curiae brief on behalf of the American Civil Liberties Union of New Jersey (ACLU-NJ) and argued that the court should preserve the distinction that police officers cannot order passengers from a vehicle as a matter of routine unless the officers are able to point to “specific and articulable facts that would warrant heightened caution.” In addition to arguing that the doctrine of stare decisis supported upholding the distinction, the ACLU-NJ highlighted a passenger’s privacy interests in not exiting the vehicle, and at oral argument, Pashman Stein attorney CJ Griffin highlighted the many cases in which people of color have been shot and killed by police during motor vehicle stops and the racial disparities that exist in the statistics regarding drivers who are ordered out of vehicles.

Ultimately, the New Jersey Supreme Court reaffirmed its prior holdings that the “heightened caution” standard must be satisfied for police officers to force a passenger to exit a vehicle. This was a big win for the civil liberties of passengers, as New Jersey is one of the only jurisdictions in the United States to maintain the distinction for passengers—most states follow the federal standard and give police broad discretion to order both passengers and the driver out of a car.

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