COMMONWEALTH vs. JOHN D. GONSALVES

GREANEY, J. The defendant is charged with trafficking in cocaine in violation of G. L. c. 94C, s. 32E (b). The cocaine was seized by a State trooper, who, while on routine traffic patrol at about 9 P.m. on March 5, 1997, stopped a taxicab on Route 195 near Marion, after he had seen the taxicab drift over

Page 659

a marked lane into the breakdown lane. In the course of the stop, the trooper ordered the defendant, who was sitting in the rear of the taxi, to get out. After conversing with the defendant, the trooper searched the rear seat area and seized a package of cocaine weighing approximately seventy-eight grams. A judge in the Superior Court allowed the defendant's motion to suppress both the cocaine and his statements because the trooper had "no objective basis upon which to order the defendant out of the vehicle [Note 1]." The Appeals Court affirmed the suppression order, relying on our case law under art. 14 of the Declaration of Rights of the Massachusetts Constitution, concluding, as did the Superior Court judge, that the trooper had no reasonable basis to support his order to the defendant to step out of the taxicab. Commonwealth v. Gonsalves, 46 Mass. App. Ct. 186 (1999). The Appeals Court rejected the Commonwealth's request that our law should be changed to conform to Maryland v. Wilson, 519 U.S. 408, 415 (1997), which holds that a police officer does not violate the Fourth Amendment to the United States Constitution, when the officer, in a routine traffic stop, orders a passenger out of the vehicle. Commonwealth v. Gonsalves, supra at 187. We granted the Commonwealth's application for further appellate review to consider the Commonwealth's request. We are not persuaded that we should change our law developed under art. 14.

Based on the evidence that he found credible, the judge made findings of fact. We accept those facts, see Commonwealth v. Colon-Cruz, 408 Mass. 533, 538 (1990), and now summarize them. When the State trooper observed the taxicab traveling partly in the breakdown lane of the highway which he was patrolling, he became concerned that the driver might be under the influence of an intoxicant, and signaled for the driver to stop. The trooper approached the stopped taxicab, spoke to the driver, and noted that there were also two passengers in the car, including the defendant, who was the sole occupant of the back seat. The trooper took the taxicab driver's license and registration. He questioned the driver about his driving over the marked

Page 660

lane, and the driver told the trooper that he had trouble with his night vision. In the course of questioning the driver, the trooper trained his flashlight on the occupants of the car, something which he routinely did on such stops for his personal safety. The trooper thought the defendant was extremely nervous. His hands were trembling and moving from his lap to the seat and back to his lap again, and he appeared to be breathing heavily. Because the defendant appeared nervous, the trooper ordered him to step out of the taxicab. The defendant complied, and the trooper conducted a patfrisk, which revealed nothing. He asked the defendant why he was nervous, and the defendant replied that there were warrants outstanding against him for driving without a license. At that point, the trooper "secured" the defendant in the rear seat of the police cruiser. He obtained permission from the driver of the taxicab to search the vehicle's back seat, where the trooper saw a portion of a plastic bag protruding from between the seat cushion and the seat back. The plastic bag contained white powder which the trooper suspected was cocaine.

The trooper returned to the cruiser, recited the Miranda rights to the defendant, and questioned him. The defendant denied knowledge of the plastic bag or any cocaine. After citing the taxicab driver for a marked lane violation, the trooper allowed the taxicab to leave. He then took the defendant to the Bourne barracks for further questioning. At first, the defendant continued to deny any knowledge of the bag of white powder, which weighed approximately seventy-eight grams, but, eventually, he made inculpatory statements in the trooper's presence.

1. In Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), the United States Supreme Court held that a police officer may, as matter of course, order a driver out of a vehicle that has been lawfully stopped for a traffic violation. In Maryland v. Wilson, supra at 415, the Court extended that rule to approve similar orders given to passengers in a stopped vehicle [Note 2]. The Commonwealth argues that we have "consistently purported to follow Mimms." It relies on Commonwealth v. Santana, 420 Mass. 205, 212-213 (1995), for this statement, while acknowledging,

Page 661

as it must, that Santana contains language which "squarely cuts against the [the United States Supreme] Court's holding in Mimms." Nonetheless, the Commonwealth argues that we should now expressly embrace Mimms, and its corollary, the ruling in Wilson, and make plain that our art. 14 case law coincides with the Mimms-Wilson holdings under the Fourth Amendment.

We have not adopted Minims.

"It is true that cases from [the Appeals Court] and the Supreme Judicial Court have cited approvingly to Minims, without expressly stating that the police are not entitled to carte blanche authority to order drivers out of their vehicles. See, e.g., Commonwealth v. Ferrara, 376 Mass. 502, 505 (1978); Commonwealth v. Robbins, 407 Mass. 147, 151 (1990); Commonwealth v. Moses, 408 Mass. 136, 142 (1990); Commonwealth v. Lantigua, 38 Mass. App. Ct. 526, 528-529 (1995).

"However, a closer examination of these cases reveals that while explicit language requiring a 'reasonable suspicion' has not appeared, each case explored the factual basis for the officer's suspicion. See Commonwealth v. Ferrara, 376 Mass. at 505 (finding no basis for further interrogation and no need for further protective precautions, and reversing order denying motion to suppress); Commonwealth v. Robbins, 407 Mass. at 152 (police officer's actions proper where officer saw brown-handled object wedged in passenger seat and driver had just been arrested on outstanding warrant); Commonwealth v. Moses, 408 Mass. at 138, 141-143 (police officer's actions proper where officer feared defendants had access to a weapon, was outnumbered by defendants, and one defendant, upon making eye contact with the officer, ducked under dashboard)."

Commonwealth v. Williams, 46 Mass. App. Ct. 181, 183-184 (1999). As the Williams opinion goes on to point out, what was implicit in the decisions just referred to, was made explicit in Commonwealth v. Santana, supra, where we stated that "[t]o determine whether [an exit) order was justified, we ask 'whether a reasonably prudent man in the policeman's position would be warranted in the belief that the safety of the police or that of other persons was in danger.' " Commonwealth v. Santana, supra at 212-213, quoting Commonwealth v. Almeida, 373 Mass.

Page 662

266, 271 (1977). This statement in Santana was reiterated two years later in Commonwealth v. Vazquez, 426 Mass. 99, 102103 (1997). Thus, the rule that a police officer must, at least, have a reasonable suspicion of danger before compelling a driver to leave his motor vehicle has been affirmed by this court well after the United States Supreme Court abandoned that requirement in Mimms. Because we have departed from the Federal view of a citizen's Fourth Amendment rights in the area, our long-standing rule expresses a principle of State constitutional law under art. 14.

We have expressly granted other protections to drivers and occupants of motor vehicles under art, 14 in a variety of areas, and we have done so to guarantee protections that, in some cases, may not be recognized under the Fourth Amendment. See Commonwealth v. Torres, 424 Mass. 153, 154-155, 157-164 (1997) (that passenger left vehicle, without being asked to do so, on routine traffic stop provides no basis to further detain driver and passenger after issuing speeding ticket); Commonwealth v. King, 389 Mass. 233, 244 (1983) (once officer, making valid investigatory check of parked car at rest area, verified driver's and passenger's licenses and vehicle registration, no grounds existed for further investigation or precautions); Commonwealth v. Loughlin, 385 Mass. 60, 61-63 & n.3 (1982) (search conducted after justifiable threshold inquiry wherein driver produced valid license and registration held impermissible); Commonwealth v. Ferrara, supra at 504-505 (no basis to interrogate passengers after driver produced valid license and registration); Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 534 (1998) (during routine stop for traffic violation, officer may not ask for passenger's identification as matter of "routine practice"); Commonwealth v. Ellsworth, 41 Mass. App. Ct. 554, 556-557 (1996) (after officer, having stopped driver for erratic driving, determined that there was no traffic offense and driver had produced valid license and registration, he had no reason to issue exit orders to passengers, in spite of earlier furtive movements of one passenger); Commonwealth v. Kimball, 37 Mass. App. Ct. 604, 607 (1994) (during stop on suspicion that car was stolen, once driver produced valid license and registration, he should have been permitted to leave). In view of these protections, and the principles expressed in the Santana decision, which were repeated in the Vazquez decision, we conclude that art. 14 requires that a police officer, in a

Page 663

routine traffic stop, must have a reasonable belief that the officer's safety, or the safety of others, is in danger before ordering a driver out of a motor vehicle. The fact that we do not follow Mimms in this type of case necessarily leads to the conclusion that we shall not follow Wilson either, because Wilson extends Mimms in a manner incompatible with the rights guaranteed Massachusetts citizens under art. 14.

2. We now explain our reasons for reaching these conclusions and comment on some matters raised by the dissenting opinion in this case. A routine traffic stop, like the one in this case, presents a situation where citizens, both the vehicle's driver and any passenger or passengers in the vehicle, expect a police officer to get the government's business done quickly, so those detained can go on their way. This expectation is a reasonable one. A passenger in the stopped vehicle may harbor a special concern about the officer's conduct because the passenger usually had nothing to do with the operation, or condition, of the vehicle which drew the officer's attention in the first place. Citizens do not expect that police officers handling a routine traffic violation will engage, in the absence of justification, in stalling tactics, obfuscation, strained conversation, or unjustified exit orders, to prolong the seizure in the hope that, sooner or later, the stop might yield up some evidence of an arrestable crime. That a small percentage of routine traffic stops may result in the detection of more serious crime is no reason to subject the vast majority of citizens to orders to get out of their vehicles.

Such an intrusion into a driver or a passenger's privacy is not minimal. As was expressed by a dissent in Mimms, "[a] woman stopped at night may fear for her own safety; a person in poor health may object to standing in the cold or rain; another who left home in haste to drive children or spouse to school or to the train may not be fully dressed; an elderly driver who presents no possible threat of violence may regard the police command as nothing more than an arrogant and unnecessary display of authority." Pennsylvania v. Mimms, supra at 120-121 (Stevens, J., dissenting). Routine traffic stops may also pose unique hardships on minorities who, it has been argued, are often the subject of stops on pretext. See Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544 (1997); Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth

Page 664

Amendment, 1997 Sup. Ct. Rev. 271. Justice Ireland's concurring opinion, with which we agree, makes this point more expansively. Post at 669-671. The rules in Minims and Wilson, which permit automobile exit orders during any traffic stop, but which do not require that such orders be given, are a clear invitation to discriminatory enforcement of the rule [Note 3].

"Mimms [and Wilson] rested on the logic, which we do not contest, that there is danger for a police officer inherent in any auto stop. Mimms, 434 U.S. at 110, Ill. However, to permit an officer, in the absence of any specific and articulable facts, to order the driver of a vehicle [and a passenger or passengers] to step out of the vehicle would be to invite random and unequal treatment of motorists. See Commonwealth v. Bartlett, 41 Mass. App. Ct. 468, 472 (1996) ('[t]he vice in interrogations and searches based on a hunch is their essentially random and arbitrary nature, a quality inconsistent, under constitutional norms . . . with a free and ordered society')." Commonwealth v. Williams, supra at 183. The safety of the police can be adequately protected. While a mere hunch is not enough, see Commonwealth v. Silva, 366 Mass. 402, 406 (1974), it does not take much for a police officer to establish a reasonable basis to justify an exit order or search based on safety concerns, and, if the basis is there, a court will uphold the order. See Commonwealth v. Johnson, 413 Mass. 598, 600, 601 (1992) (driver put something inside his waistband after trying to evade police); Commonwealth v. Almeida, 373 Mass. 266, 271-272 (1977) (driver failed to produce registration in high crime area, late at night, and carefully opened console just high enough when retrieving wallet); Commonwealth v. Prevost, 44 Mass. App. Ct. 398, 399 (1998) (passenger bent out of officer's sight and attempted to put on his coat as if to conceal something); Commonwealth v. Reughan, 40 Mass. App. Ct. 102, 104-105 (1996) (as driver pulled over, back seat passenger bent down as if replacing or retrieving object under front seat); Commonwealth v. Rivera, 33 Mass. App. Ct. 311, 314-315 (1992) (driver had no license, police officer outnumbered, aluminum bat under front passenger seat, back seat passenger holding object large enough to conceal weapon); Commonwealth v. Vanderlinde, 27

Page 665

Mass. App. Ct. 1103, 1104 (1989) (driver had tried to evade capture and passenger reached into well between the front seats during the stop). See also State v. Smith, 134 N.J. 599, 618 (1994) ("To support an order to a passenger to alight from a vehicle stopped for a traffic violation, therefore, the officer need not point to specific facts that the occupants are 'armed and dangerous.' Rather, the officer need point only to some fact or facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would warrant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to alight from the car"). It could be argued plausibly that automatic exit orders might increase the chance of confrontation when already upset citizens are compelled to stand outside a vehicle while a police officer disposes of the minor traffic violation, especially if circumstances indicate that the officer's conduct may be a pretext [Note 4].

The rule we adopt also provides that the police will act in a reasoned way. As Justice Kennedy stated in his dissent in Wilson: "The distinguishing feature of our criminal justice system is its insistence on principled, accountable decision making in individual cases." Maryland v. Wilson, supra at 422 (Kennedy, J., dissenting). Bright-line rules, by their nature, tend to eliminate this feature. They should be allowed only in those circumstances where safety concerns clearly outweigh the intrusion on individual rights [Note 5]. Police work is fast-paced, can be dangerous at times, and requires understanding of a broad set of

Page 666

rules in order to ensure that the rights of citizens are upheld. The dissent in this case calls for a bright-line rule in order to ease some of the complexity police officers face in the line of duty, equating the Mimms-Wilson rule to the automatic patfrisk that may accompany a lawful Terry stop [Note 6]. Post at 676-678. The two situations are not analogous, and the difference between them demonstrates why the Mimms-Wilson rule should not be adopted.

Under Terry, a police officer is permitted to pat frisk a person stopped under suspicion of criminal activity where the police officer has reason to believe he is dealing with an armed and dangerous individual. See Terry v. Ohio, 392 U.S. 1, 24-25 (1968). Under Mimms-Wilson, a police officer is permitted to issue exit orders to a person stopped for a traffic infraction when the officer has no reason to suspect anything. It is more consistent with the Terry rule, as well as with the circumstances in which we have been willing to create bright-line rules, to require some objective circumstances making it reasonable to issue an exit order to the driver or passengers in a stopped vehicle. We believe that "[i]t does no disservice to police officers . . . to insist upon exercise of reasoned judgment" in this kind of case. Maryland v. Wilson, supra at 423 (Kennedy, J., dissenting).

The dissent in this case refers to forty-five States which it asserts have accepted Mimms or Wilson or both. This assertion should be looked at with a skeptical eye. While we agree that twenty-two States have considered Minims, and in some instances Wilson, and accepted the rules in these decisions as a matter of State constitutional law or policy [Note 7], twenty-two States have not expressly considered the issues in Mimms or Wilson

Page 667

under their State Constitutions [Note 8]. Three States have rejected Minims or Wilson on State constitutional grounds [Note 9], [Note 10].

We also point out other relevant considerations. The Declaration of Rights was adopted in 1780, as part of the Massachusetts Constitution, some seven years before the United States Constitution was approved. The Declaration of Rights was written in the historical context of the abuses of governmental power inflicted on the colonists by British officials, and art. 14

Page 688

was directed at the unlawful invasion of privacy rights by those officials. That the drafters of the Fourth Amendment subsequently chose to replicate the words used in art. 14 cannot support a conclusion that we are compelled to act in lockstep with the United States Supreme Court when it interprets that amendment. Such a conclusion posits a serious misunderstanding of the authority of this court to interpret and enforce the various provisions of the Massachusetts Constitution, particularly those in the area of civil liberties. Chief Justice Wilkins has stated that, "the [United States] Supreme Court . . . describ[es] a common base from which we can go up," but the Justices of this court "are, however, entitled to [their] own views, indeed constitutionally required to have them." Remarks of Chief Justice Herbert P. Wilkins to Students at New England School of Law on March 27, 1997, 31 New England L. Rev. 1205, 1213 (1997). The nature of federalism requires that State Supreme Courts and State Constitutions be strong and independent repositories of authority in order to protect the rights of their citizens.

The foregoing discussion explains the foundation of our rule that, once a stopped driver has produced the necessary papers and they are found to be in order, he and his passengers are to be promptly released, Commonwealth v. Torres, 424 Mass. 153, 158 (1997), and why we choose not to follow Mimms-Wilson. We, of course, respect the United States Supreme Court's judgment in the matter under the Fourth Amendment. That judgment was reached after balancing the interests of the police against the liberty interests of citizens, with the Court concluding that the former should prevail over the latter. For the reasons stated, we conclude that, under art. 14, the balancing of interests requires that Massachusetts citizens should not be subjected to unjustified exit orders during routine traffic stops.

3. We reject the Commonwealth's arguments that the judge based his ruling on an erroneous interpretation of the timing of the officer's exit orders, or, alternatively, that the judge erred in finding no reasonable basis for the actions of the trooper. It was not the timing of the trooper's actions, but the insufficient reasons for the actions, on which the judge based his decision. We agree with the analysis made by the Superior Court judge and the Appeals Court in considering whether the trooper had a basis to order the defendant out of the taxi. Where, as here, the evidence consists solely of oral testimony, the determination of the weight and credibility of the testimony is the responsibility

Page 669

of the judge. We accept his subsidiary findings of fact and his decision that nervousness and fidgeting do not warrant what occurred here [Note 11]. Commonwealth v. Colon-Cruz, 408 Mass. 533, 538(1990).

Order allowing motion to suppress affirmed.

IRELAND, J. (concurring). I join in the opinion of the court and fully agree with its conclusion that, in the context of automobile exit orders, art. 14 of the Declaration of Rights of our State Constitution provides greater protection to Massachusetts citizens than the United States Constitution. As we were once reminded, "The right question . . . is not whether a state's guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state's guarantee means and how it applies to the case at hand." Massachusetts v. Upton, 466 U.S. 727, 738 (1984) (Stevens, J., concurring), quoting Linde, E Pluribus Constitutional Theory and State Courts, 18 Ga. L. Rev. 165, 179(1984).

I write separately, however, to stress the dangers posed by unfettered police power to order individuals out of automobiles without any justification. The grant of such power is certainly, as the majority notes, "a clear invitation to discriminatory enforcement of the rule." Ante at 664. This is precisely the type of power "that art. 14 was adopted to guard against," Commonwealth v. Blood, 400 Mass. 61, 71 (1987), because, in the words of James Otis, it " 'places the liberty of every man in the hands of every petty officer.' " Commonwealth v. Cundriff, 382 Mass. 137, 144 (1980), cert. denied, 451 U.S. 973 (1981), quoting 2 Legal Papers of John Adams (L. Wroth & H. Zobel eds. 1965).

Page 670

The widespread public concerns about police profiling, commonly referred to as -DWB - driving while black," has been the subject of much discussion and debate both across the country and within the Commonwealth. See Black Drivers Describe Harassment by Police, The Boston Globe, Apr. 13, 1999, at A1. Statistics show that such racial profiling occurs throughout the nation. "In Florida, police documented 1,100 videotaped stops along Interstate 95 in the late 1980's. While blacks and Hispanics made up just 5 percent of the drivers, they made up eighty percent of those stopped and searched." Traffic Stops Discounted in Sentencing, The Washington Post, Dec. 17, 1998, at A8. One study found that seventy-three per cent of cars stopped and searched on Interstate 95 in Maryland were driven by black people, while only fourteen per cent of people who use the road are black. Seat Belt Push Raises Race Issue; Blacks Weigh Tolls of Safety vs. Bias, The Washington Post, Apr. 3, 1998, at Al. In addition, statistics presented to the United States House of Representatives indicate that "blacks, who make up about 14 percent of the population, account for 72 percent of drivers pulled over for routine traffic stops." House OKs Study of Car Searches, The Boston Globe, Mar. 25, 1998, at A12.

Indeed, the New Jersey Attorney General's office has recently admitted that such racial profiling in traffic stops is "real, not imagined." Bradley Puts Race at Center Of Campaign, The Star-Ledger (Newark, N.J.), Apr. 21, 1999, at 8. "Of the stops examined by the [New Jersey] Attorney General's Office, roughly 60 percent involved white drivers, 27 percent blacks, 7 percent Hispanics, and 4 percent Asians. Few of those stops[,] less than I percent[J resulted in searches. But when they did, 77 percent of the searches involved blacks or Hispanics. Only 21 percent of the searches involved whites." Belated Acknowledgment an Essential First Step To Ending Racial Profiling, The Record (Northern N.J.), Apr. 22, 1999, at L8.

Other courts have also recognized racial profiling and "DWB" as a real cause for concern. See United States v. Leviner, 31 F. Supp. 2d 23, 33 (D. Mass. 1998); State v. Valentine, 132 Wash. 2d 1, 28 n.1 (1997) (Sanders, J., dissenting).

As the court's opinion indicates, ante at 663-664, the rules in Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Maryland v. Wilson, 519 U.S. 408 (1997), which permit automobile exit orders during any traffic stop "may also pose unique hardships on minorities" and could be a "clear invitation to discrimina

Page 671

tory enforcement." Prohibiting the police from ordering people out of automobiles without any justification is a much needed step in the right direction to cure such abuses.

FRIED, J. (dissenting, with whom Lynch, J., joins). Twenty-two years ago the Supreme Court of the United States announced a rule intended better to assure the safety of police officers against the sometimes lethal dangers of routine traffic stops. Today the court, invoking the Constitution of this State, rejects that rule. Virtually every other State has accepted the Supreme Court's rule. Indeed, until today we too had always cited the Supreme Court's rule with approval. Because I believe today's decision to be unwarranted in principle and unwise in policy, I respectfully dissent.

I

In Pennsylvania v. Minims, 434 U.S. 106 (1977), the Supreme Court ruled that the Fourth Amendment to the United States Constitution is not offended by the practice of ordering, as a matter of course, the driver of a vehicle lawfully stopped to step outside the vehicle while the necessary inquiries connected with that stop are conducted. There were three dissenters at that time. The Court has not deviated from that rule. Two years ago in Maryland v. Wilson, 519 U.S. 408 (1997), a wide spectrum of Justices (Rehnquist, C.J., and O'Connor, Scalia, Thomas, Souter, Ginsburg, and Breyer, JJ.) extended that rule to the passenger of the vehicle. There were only two dissenters. The Court's reasoning in Mimms is worth setting out at length:

"The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about big behavior. It was apparently his Practice to Order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation. The State argues that this practice was adopted as a precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground. Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault.

"We think it too plain for argument that the State's

Page 672

proffered justification - the safety of the officer - is both legitimate and weighty. 'Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.' Terry v. Ohio, [392 U.S. 1, 23 (1968)). And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. 'According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings - A Tactical Evaluation, 54 J. Crim. L.C. & P.S. 93 (1963).' Adams v. Williams, 407 U.S. 143, 148 n.3 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234 (1973). Indeed, it appears 'that a significant percentage of murders of police officers occurs when the officers are making traffic stops.' Id., at 234, n.5.

"The hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations. Rather than conversing while standing exposed to moving traffic, the officer prudently may prefer to ask the driver of the vehicle to step out of the car and off onto the shoulder of the road where the inquiry may be pursued with greater safety to both." (Footnote omitted.)

Id. at 109-111. In extending that rule to passengers in Wilson, the Court stated that "danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal." Wilson, supra at 414-415. One cannot insist too much on the statistics cited by the Court showing the number of fatal killings of police officers in connection with traffic stops, including routine traffic stops. Since Mimms was decided, at least two police officers in this Commonwealth have been murdered in connection with traffic stops. See Boston Herald v. Superior Court, 421 Mass. 502 (1995); Commonwealth v.

Page 673

Colon-Cruz, 408 Mass. 533 (1990) [Note Dissent-1]. The court today waves aside the substantial evidence of this mortal danger to our law enforcement officers with only a passing reference to the "danger for a police officer inherent in any auto stop," ante at 664, quoting Commonwealth v. Williams, 46 Mass. App. Ct. 181, 183 (1999), and rejects for the first time a doctrine we have cited with approval ever since it was first established.

II

The court finds this rejection of the Supreme Court's Fourth Amendment jurisprudence to be compelled by the similarly worded provision of art. 14 of the Massachusetts Declaration of Rights, a provision we have never before cited in this context. There is no such constitutional compulsion. This is a pure judgment of policy, a policy judgment that appeals to a majority of this court, though not to the United States Supreme Court. In the past, when we have declined to follow the Supreme Court in this area of the law, we have pointed to decisions in our

Page 674

sister States to show that ours is not an idiosyncratic or merely personal judgment. See, e.g., Commonwealth v. Stoute, 422 Mass. 782, 786-789 (1996) (declining to follow California v. Hodari D., 499 U.S. 621 [1991]); Commonwealth v. Upton, 394 Mass. 363, 374 n.10 (1985) (declining to follow Illinois v. Gates, 463 U.S. 213 [1983]). The court does not do so today, and small wonder. Forty-four States and the District of Columbia have accepted Mimms and only one has rejected it on constitutional grounds, as the court does today [Note Dissent-2]. See Appendix [Note Dissent-3].

Page 675

And of the twenty-nine jurisdictions to consider whether to

Page 676

extend Minims to passengers, only three have declined, and, of these three, two were decided prior to Wilson, seriously undermining any claim as to their continuing validity. See Appendix. Indeed, it is significant that the one State court decision to which the court does point and from which it quotes at length, State v. Smith, 134 N.J. 599 (1994), explicitly endorsed Mimms, but declined to extend it to passengers. Id. at 617-619. Moreover, that case was decided before Wilson. And since Wilson two New Jersey courts have questioned the continuing validity of Smith. See State v. Arthur, 149 N.J. 1, 16 (1997) (discussing both Minims and Wilson and noting that Smith was "prior to Wilson"); In re A.P, 315 N.J. Super. 166, 169-171 (1998) (discussing with approval both Minims and Wilson and distinguishing permissibility of exit order while performing community caretaking function from Mimms-Wilson rule applicable to lawful traffic stops).

The Supreme Court's decision in Mimms [Note Dissent-4] explained in some detail why ordering a lawfully stopped motorist to leave his vehicle might be a reasonable safety precaution. Measured against the danger to the officer, the Court judged that the inconvenience to the motorist was minimal. As I have said, the court today makes only the most passing reference to these compelling facts. But Minims and Wilson represent a more general judgment than that regarding the relative weight of the interests of the police and the stopped motorist. The Supreme Court is deliberately promulgating a simple bright-line rule, which police officers and judges can readily understand and administer. This is in response to a widespread sentiment that Fourth Amendment law had become far too complex, replete with many factored tests and complex balancing of factors [Note Dissent-5]. Such complexity is particularly inappropriate in an area of law

Page 677

which is to be administered by police officers in the field, often in dangerous and confused circumstances. Minims and Wilson are but two examples of the Supreme Court's attempt to make the law of searches and seizures more appropriate to the circumstances to which it applies [Note Dissent-6]. The virtue of Mimms and Wilson is that they do not require the officers to weigh up the factors and circumstances before taking one simple step to increase their own safety. Mimms and Wilson would also take judges out of the business of making similar fine-grained inquiries after the fact in order to determine whether the police's self-protective measures were justified. Rather, there is substituted a global judgment and a simple, bright-line rule. The recent decision of the Supreme Court in Knowles v. Iowa, 119 S. Ct. 484 (1998), to which the court adverts, is entirely consistent with this development. Minims and Wilson establish what may be done in a proper traffic stop, and Knowles makes clear that when the reason for the stop has been exhausted, so is the basis for the self-protective and other measures. And that is all that our many cases - Commonwealth v. Torres, 424 Mass. 153 (1997); Commonwealth v. Loughlin, 385 Mass. 60 (1982); Commonwealth v. Ferrara, 376 Mass. 502 (1978) - which the court today cites for its decision hold, as the court's own parentheticals show [Note Dissent-7]. The Supreme Court's pursuit of bright-line rules that would avoid what the Court called a "bog of litigation" was again illustrated in the very recent case of Wyoming

Page 678

v. Houghton, 119 S. Ct. 1297, 1303 (1999), where the Court refused to condemn the search of the handbag of a passenger in an automobile the police reasonably believed contained contraband, without any particularized belief relative to that handbag or that passenger. See id. at 1304 (Breyer, J., concurring).

Of course there is a balancing of competing interests in these decisions, but what the court misses today is what might be called the second-order balancing that weighs the advantages of a myriad of complex individual determinations against the clarity of a readily understood and readily administered bright-line rule.

III

Now what does the court offer as a basis for rejecting the balance struck in a long line of Supreme Court decisions [Note Dissent-8], and by virtually all of our sister States? See Appendix. Certainly not our precedents, because we have consistently cited Mimms with approval, although sometimes tacking on language which misreads what is the salient and evident holding of that case. In the light of these many citations, the opening flourish in the courts analysis of our cases, "We have not adopted Mimms," is somewhat surprising. Ante at 661. Moreover, we have never once until this day invoked art. 14 in respect to exit orders, and therefore whether we have misread Mimms or not [Note Dissent-9], we were certainly bound by it in applying the Fourth Amendment.

No, this is pure policy. And what is the basis for this policy? That the intrusions on operators and passengers are not so minimal as the Supreme Court and almost every other State

Page 679

court think [Note Dissent-10], and that the police officers may after all get all the protection they need, because "it does not take much for a police officer to establish a reasonable basis to justify an exit order." Ante at 664. But that is just the point: it does not take much because the danger is ever present and therefore both police officers and the administration of justice are better served by the Supreme Court's bright-line rule. In this respect, the bright-line Mimms-Wilson rule is analogous to the patfrisk that may accompany a lawful Terry stop. See Terry v. Ohio, 392 U.S. 1, 24-25 (1968). As in the traffic stop, the initial intrusion does require some demonstrable predicate, but neither the Supreme Court nor this court has ever demanded that an officer conducting a patfrisk must - to use the court's phrasing today - "establish a reasonable basis" for the protective measure. If the stop is lawful, this further minor intrusion is entirely within the officer's discretion. See Terry, supra at 30; Commonwealth v. Fraser, 410 Mass. 541, 544-545 n.4 (1991), quoting 3 W.R. LaFave, Search and Seizure s. 9.4(a), at 499 (2d ed. 1987 & Supp. 1991) ("A protective frisk of a suspect under the principles of Terry may be warranted where there is 'some legitimate basis for the officer being in immediate proximity to the person' "). The reason is the same here: to ask more is to put the officer in danger for insufficient reason.

Unfortunately the court chooses to bolster its policy judgment by invoking the inflammatory issue of race: "Routine traffic stops may also pose unique hardships on minorities who, it has been argued, are often the subject of stops on pretext." Ante at 663. What work is the word "pretext" doing here? Is the traffic stop justified, or is it not? If it is not, then of course it constitutes an unlawful seizure and resulting searches are also unlawful. What the court must mean is that the traffic stop is lawful, but the discretion to make the stop is invoked discriminatorily against minorities, as the materials cited by the court and the concurrence clearly indicate. And that discriminatory imposition may then be the occasion for imposing, in a discriminatory way,

Page 680

the further humiliation that the court discerns in police exit orders. Although I completely agree that the discriminatory enforcement of the law is a shame and a disgrace, as Professor Randall Kennedy has so eloquently argued, see Kennedy, Race, Crime, and the Law c. 4 (1997), I think it is fanciful to imagine that by weaving a gossamer garment of complicated rules, we will do anything at all to root out this behavior wherever it exists. Does not the court seek to justify this very decision by arguing that "it does not take much for a police officer to establish a reasonable basis to justify an exit order"? Surely bigoted or abusive police officers, bent on mischief, will have no difficulty at all in concocting such a "reasonable basis" after the fact. It is a fundamental error to fashion rules that will hamper only conscientious officers in order to restrain the unconscientious and abusive, who in any event will evade them. The conscientious officer who follows the court's ruling today must hesitate in order to ponder whether he has that "objective" and "articulable" basis for ordering a driver or his passenger out of a lawfully stopped vehicle. That moment's hesitation may cost him his life. That is what the Supreme Court concluded a long time ago and that is the judgment to which it has adhered ever since. The unscrupulous officer will do as he pleases and find his justification afterward.

So it comes down to two policy judgments: that of the Supreme Court and of almost all other State courts, or the one this court promulgates today in the name of our State Constitution. I prefer the Supreme Court's judgment and the judgment of State courts across the nation. May not the majority of this court prefer its own? Is there no principle of choice, no metric of judgment here? This is an utterly false dilemma, and the maxim in dubiis libertas cuts sharply against what the court does today. For the Supreme Court's rule leaves the Legislatures of this nation - which, after all, have the mandate, the experience, and the means to make policy judgments - free to enact more stringent measures if they deem it appropriate. This court's action today removes that option from the Legislature. Our Legislature has, on several occasions, enacted procedural protections against police practices more stringent than we were prepared to impose in the name of the Constitution. Even now, as the court's and the concurring opinion's citations indicate, the problem of discriminatory enforcement of traffic laws has caught the attention of our and other State Legislatures and State and Federal executive policy makers. Quite apart from the

Page 681

greater legitimacy of policy making by the Legislature, the Legislature has the means to gather the facts, to develop structured remedial systems, and the ability to reverse course if it makes a mistake. When we speak in the name of the Constitution, however, we purport to speak for the ages and, absent a change of heart, only a constitutional amendment can reverse a mistaken course of decision. But the technical and particularistic nature of today's mistaken decision does not allow even that cumbersome remedy, and the people of the Commonwealth must rely entirely on this court's wisdom and restraint. Cf. District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 (1980) (death penalty violates State Constitution), overturned by the 1982 amendment (art. 116 of the Amendments) to art. 26 of the Massachusetts Declaration of Rights.

IV

Finally, I must respond to the court's invocation of history to justify, maybe even to compel, its unwise and idiosyncratic decision. This is the argument that John Adams made me do it. Of course we have a duty to come to our own conclusion about the meaning of our own Constitution, and no one asserts otherwise. This is particularly so if the wording of our Declaration of Rights is more stringent than that of the Bill of Rights. See, e.g., Commonwealth v. Amirault, 424 Mass. 618, 628-631 (1997); Commonwealth v. Hinckley, 422 Mass. 261 (1996). In this case the two formulations are, in all relevant respects, identical. Of course even then "we can go up," and place greater restrictions on law enforcement than the Supreme Court has decreed. This is a truism. We are not free to go down, so "up" is the only direction in which we may move, but that proves nothing. The directional metaphor of "up" suggests that more is necessarily better, as are more parks, more teachers, more safety, and more security. But that begs the central question. Are more and more restrictions on law enforcement, more and more elaborate rules better; is that trend really "up"? Thus, rather than engaging in judicial chauvinism we should ask: Is this decision wise, and - far more to the point - is there something in our Constitution that authorizes us to announce this anomalous rule and, by styling it a constitutional judgment, to put it beyond the reach of the ordinary processes of government? There is not.

As for history, research shows that many of the complexities we have thrown up about the process of investigating, prosecut-

Page 682

ing and punishing crime were far from the contemplation of those who framed either the Bill of Rights or our own Declaration of Rights. See Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53 (1996); Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994); Langbein, The Historical Origins of the Privilege Against Self-Incrimination at Conunon Law, 92 Mich. L. Rev. 1047 (1994). These and other restrictions are of more recent vintage, based in large part on a series of warmly contested decisions of the United States Supreme Court primarily during the decade of the 1960's. See, e.g., Furman v. Georgia, 408 U.S. 238, 257 (1972) (Brennan, J. concurring) (death penalty violates Eighth Amendment to the United States Constitution); Miranda v. Arizona, 384 U.S. 436 (1966); Griffin v. California, 380 U.S. 609 (1965); Mapp v. Ohio, 367 U.S. 643 (1961). And as for the integrity of our distinct constitutional traditions, the striking thing is that, often as not, these Supreme Court decisions compelled us to abandon long-standing lines of decision interpreting our Declaration of Rights. See, e.g., Commonwealth v. Tibbetts, 157 Mass. 519 (1893); Commonwealth v. Dana, 2 Met. 329 (1841). Cf. Cassell, The Mysterious Creation of Search and Seizure Exclusionary Rules under State Constitutions: The Utah Experience, 1993 Utah L. Rev. 751. That is why the invocation of our own independent traditions on this, as on other occasions, e.g., Commonwealth v. Stoute, 422 Mass. 782, 786-787 (1996) (declining to follow California v. Hodari D., 499 U.S. 621 [19911); Commonwealth v. Lyons, 409 Mass. 16, 18 (1990), and Commonwealth v. Upton, 394 Mass. 363, 371 (1985) (declining to follow Illinois v. Gates, 462 U.S. 213 [1983] [totality of the circumstances in determining reasonable suspicion and probable cause]); District Attorney for the Suffolk Dist. v. Watson, supra at 666-667 (declining to follow Gregg v. Georgia, 428 U.S. 153 [1976]), is more than a little opportunistic. What in fact has happened is that after the brief burst of activity in the Supreme Court, the Court itself calmed down and declined, in a series of decisions of which Mimms and Wilson are but two, to extend the doctrines of that brief earlier period. That more sober trend, of course, invoked the strong disapproval of the dwindling number of Justices who in dissent would have extrapolated from the sometimes salutary positions marked out in the earlier decade. And sensing defeat, the call went out for State courts to take up the work in the

Page 683

name of their own State Constitutions. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). That, and not John Adams, is the historical foundation of today's unfortunate decision.

For these reasons, I respectfully dissent.

APPENDIX.

A Survey of the Permissibility of Automatic Exit Orders to Lawfully Stopped Drivers and Passengers

I. Automatic Exit Orders Permissible as to Both Drivers and Passengers (twenty-five States and the District of Columbia).

The following jurisdictions either applied the holding of Pennsylvania v. Minims, 434 U.S. 106 (1977), allowing law enforcement officials to issue automatic exit orders to drivers, to passengers prior to Maryland v. Wilson, 519 U.S. 408 (1997), or have since applied or expressed agreement with Wilson.

Page 684

Page 685

Page 686

Page 687

Page 688

II. Automatic Exit Orders Permissible to Drivers.

A. Silent as to Passengers (Sixteen States).

The following jurisdictions have accepted Mimms but have not had cause to address the issue as it pertains to passengers. As these jurisdictions have accepted Mimms, there is no reason to believe that Wilson is not similarly the law of the State.

Page 689

Page 690

B. Automatic Orders to Passengers Not Permitted (decisions preceding Wilson) (two States).

The following jurisdictions accepted Mimms but, prior to Wilson, declined to implement a bright-line rule allowing exit orders as to passengers.

C. Automatic Orders to Passengers Not Permitted (decisions rejecting Wilson) (one State).

The following jurisdiction has accepted Mimms but has decided that passengers in a vehicle have additional rights under the State Constitution which prevent their being asked to exit a vehicle without particularized suspicion.

III: Automatic Exit Orders Not Permitted as to Either Drivers or Passengers (two States).

The following jurisdictions have, in one case explicitly and the other implicitly, rejected the Supreme Court's balancing of the interests and have not allowed law enforcement officers to issue automatic exit orders.

Page 691

IV. No Authority or Undecided (three States).

The following jurisdictions either have not clearly ruled on the issue of the permissibility of automatic exit orders or have not dealt with the issue at all in a published opinion.