What is Probable Cause? And What Rights Do Passengers Have?

What is Probable Cause? And What Rights Do Passengers Have?

What is Probable Cause? And What Rights Do Passengers Have?Passengers in vehicles that are stopped by the police are often confused about what their legal rights are in a traffic stop. This is often complicated by the fact that people generally feel powerless in the presence of a police officer. There are also many misconceptions that people have, some caused by social media, that may lead people into trouble by improperly asserting rights that they do not actually have. Most people understand that when they are driving a car, they are expected to pull over after an officer turns on their lights behind them. Most people also understand they are required to show their license and insurance to a police officer. The legal rights and expectations of a passenger in a traffic stop are often less clear, however. This article explores what rights passengers do and do not have in a traffic stop.

When is it Legal for Police to pull over a vehicle?

It is important to remember that every analysis of a search and seizure revolves around one simple question: was it reasonable for the officer to do what they did?

A police officer can pull over a vehicle for a brief, investigatory stop when there is a reasonable, articulable suspicion that a traffic violation has occurred (a pretty low standard). It can’t just be based on a “hunch” or a “gut feeling” the officer has though. The word “articulable” means that there must be certain facts and observations the officer can point to, which give rise to his “reasonable suspicion” that a crime has occurred, is occurring, or is about to occur.

This means that an officer can pull you over for any small traffic violation, such as:

What if I’m Being Profiled by the Police?

Many people accused of a crime might believe that the officer may have had other (improper) reasons to pull them over, such as racial profiling. While your belief may actually be true, an officer is still generally allowed to briefly pull you over to investigate a possible traffic infraction further and to write you a ticket if you commit a traffic offense. In the real world unfortunately, you will almost never be able to get the officer to actually admit in court that he was racially profiling you. The reality is: officers have discretion to enforce the traffic codes of the state of Illinois, even though they may have multiple or conflicting motivations for pulling you over.

Reasonable Suspicion vs. Probable Cause

An officer’s duty is to both be a community caretaker (looking out for the health and safety of citizens), and to investigate and arrest people that are committing crimes. To make an arrest, it isn’t enough for an officer to just have a “reasonable articulable suspicion.” They will need something more than that, which is something called “probable cause.” Probable cause means that the officer has enough known facts to arrest someone, get a warrant, or take their property.

Once an officer pulls you over for “reasonable suspicion”, they are then actively trying to build up more facts to get to the level of probable cause in order to arrest you. When they walk up to your car after they pull you over, they are investigating further to see if they can build a case against you (based on their knowledge, experience, and observations).  The officer can use their training, in addition to things they observe about you, your car, and your passengers, to try and elevate their suspicion into an arrest. Officers may also take into account things which are told to them by other officers on the road or through dispatch, citizen tips, and even anonymous tips. They can take all this information to try and work their way up to getting probable cause in order to arrest you.

What Constitutes Probable Cause?

Probable cause can’t just be based on innocent things like observing that you may be nervous, sweating, or have a rapid heart-rate (because aren’t we all nervous during a traffic stop?). Oftentimes, probable cause is based on a combination of suspicious things the officer sees, called “the totality of the circumstances.” Maybe the officer notices a passenger rapidly trying to hide things and making “furtive movements” when he starts pulling a car over. When he approaches the car, he may also smell burnt cannabis. The officer would then have probable cause to search the car. Sometimes the officer can obtain probable cause based upon one observation alone, like seeing a gun tucked into the center console. Other times, the officer may be able to get probable cause from a combination of smaller things they see.

How Long Can the Police Detain Me at the Scene?

The officer is in a race against time to get probable cause. The officer cannot unreasonably prolong the traffic stop to try and manufacture probable cause. What does this mean? An example of this would be keeping someone waiting for two hours for a drug sniffing dog to show up, or taking an hour to write a simple traffic ticket. The officer can only keep you as long as it would normally take to finish their original task (which is usually just conducting a traffic stop and writing a ticket/citation/warning). The police can’t wait around forever to try and “build their case” against you. It is important to remember that probable cause can “build” and it can also “dissipate” if they don’t find anything. If the officer waits too long, the search will likely be held invalid by a Judge.

Do Passengers Have to Exit the Vehicle?

Now that we’ve talked about how a car gets pulled over and how a police officer tries to build probable cause to make an arrest, we turn to the rights of the passenger. One of the most important questions a passenger may have during a traffic stop is: do they have to get out of the car? After all, they weren’t driving the car and it wasn’t them who committed the traffic violation… why should they have to get out of the car?

The answer is yes, they do. The Supreme Court has made it clear that police can order a driver and their passengers out of a vehicle. The reasoning behind this rule is simple: the protection and safety of the officer. If a passenger was able to remain in the vehicle, the danger would be that they could have quick access to weapons that were hidden from view to possibly launch a “surprise attack” on the officer. The Supreme Court determined that this was too great of a risk for officers to take when conducting their ordinary duties. Therefore, when asked to get out of the car, all occupants must exit the vehicle.

Some people may be confused by videos they watch on social media that depict people explaining their rights to a police officer and refusing to get out of the car or open the windows. It is important to never confuse things you see online about your rights with proper legal information, as it could get you into trouble, get you hurt, or even get you killed.   

Can Police Search Passengers?

When officer safety is at issue, the courts are very likely to side with the police. When an officer is in a situation where he has a suspicion of danger, he may pat down both the driver and the passenger for weapons.

Courts have viewed this “suspicion of danger” test as a very low bar. The officer does not necessarily have to see a gun or a knife, for example. If the officer is in a high crime area and talking to known gang members, for example, he will likely be allowed to pat them all down. The court will look at every case differently and determine whether it was reasonable based on the specific facts of that case, but the case law is clear: officer safety is a very important consideration, and the courts are inclined to side with the officer if they subjectively feel that a pat-down was likely necessary. The officer has a lot of power under this test, and if they can point to any reasons that they believed the suspect could be armed or dangerous, even on the basis of how the passenger looked or his reputation, the Judge will likely rule that they were allowed to do a protective pat-down.

This does not mean that an officer can go rummaging through a passenger’s wallet, however. The officer is allowed to pat-down or frisk the outer garments of the driver and the passenger, looking for items which are immediately recognizable to the officer as weapons (such as a gun or knife). The officer may not manipulate the object or take it out to see what it is, unless he believes it to be a weapon.

There is one more important exception to note: the plain-feel doctrine. If an officer is able to readily determine that what he feels is not a weapon, but rather contraband like illegal drugs, he may seize that as well.

Can Police Search the Area Where a Passenger Is Sitting?

Yes, for the most part. When the driver of the car is being arrested or the police have probable cause to search the car for any reason, the passenger side of the car and any containers that could contain weapons in the passenger area may be searched as well. The justification for this is a doctrine called “search incident to arrest.” This simply means that while there is an arrest taking place, the police may search any area which would be in the “immediate control” of the person being arrested. The Supreme Court reasoned that hidden weapons in the immediate vicinity of an arrested person can be just as dangerous to an officer as hidden weapons on someone’s person. Therefore, the police may search areas that either the driver or passenger can readily gain access to (such as containers or the passenger side glove compartment). Courts have said that when there is probable cause to search for weapons in a car (justified by officer safety concerns), police may search all areas and containers that could reasonably contain a weapon (whether they belong to the driver or passenger).

The reasoning behind this is that the risk to officer safety is the same, whether the containers (such as a purse, bag, or box) belong to the driver or the passenger. When an officer has a reasonable suspicion of danger and reasonable facts which lead him to believe that he could be in danger, he may do a search of all accessible parts of the car for weapons. However, going into the trunk of the car is likely going too far as the detained driver and passenger will likely not have immediate access to this area to launch a surprise attack. Also, when the passenger and driver are both securely in a squad car and handcuffed, the justification for the search incident to arrest will likely be over at that point (as they will have no way to reach into the car to grab hidden weapons).

Can Police Question Passengers and Ask for Identification?

Yes, the police can question passengers and ask passengers for their ID so long as it does not unduly prolong the stop. So long as the officer is moving along the business of the traffic stop itself (writing the ticket, issuing the citation, etc.) the officer may ask questions of the passenger and driver. The passenger has the choice of answering or not. A passenger can also choose not to provide their ID. The theory behind allowing an officer to do this is again for officer safety. If a passenger, for example, has an outstanding warrant - that poses a safety risk for the officer. If the passenger chooses not to answer the officer’s questions or give their ID, the officer may have grounds to investigate further and prolong the traffic stop to ensure that there is no safety threat.

Can Passengers Just Walk Away?

If the passenger has committed a traffic violation, such as not having a seatbelt on, they can definitely be held at the scene. They can also be held at the scene if they try to walk away. The Illinois Supreme Court has stated that the reasoning for this is simple: officer safety. The court reasoned that forcing a passenger to wait outside the car for the duration of the traffic stop would only be a minimal intrusion on their personal liberty, and it would ensure the officer was protected from a surprise attack.

However, passengers are also able to ask (politely) if they are free to go. If the officer is unconcerned with the passenger and merely wants to write a citation for the driver, the passenger may be allowed to leave.

It is important to remember, however, that compliance is not optional. If a police officer orders a passenger to stay on the scene, they must stay on the scene, or face arrest.

Are Passengers Allowed to Challenge a Search?

Passengers may not challenge a search, but they can challenge the basis of the stop itself. A passenger will not be able to challenge the search of another’s vehicle if there was a proper basis to pull over the car, as they have no “reasonable expectation of privacy” in someone else’s vehicle. Just like someone can’t challenge a search of their neighbor’s house, a passenger can’t directly challenge the search of another’s vehicle that they have no ownership interest in.

However, the Supreme Court in Brendlin v. California said that passengers, like drivers, were considered “seized” during a traffic stop. Therefore, passengers can certainly challenge the basis of their seizure and the stop itself. If the traffic stop itself was not based on a reasonable articulable suspicion (such as if the officer pulled them over for absolutely no reason), the passenger may try to suppress the stop as a “bad stop” and ultimately suppress what was found by the officer in the search afterwards.

Speak to a Member of our Experienced Legal Team

Since 1990, the Chicago traffic offense attorneys of Mitchell S. Sexner & Associates LLC have been defending criminal and traffic clients against both misdemeanor and felony offenses. Often, a motion based upon the officer’s lack of probable cause can result in a dismissal of all charges, depending upon the circumstances.  Contact our offices 24 hours a day if you would like to speak to a member of our team. Our phone number is (312) 644-0444.

Written by Mitchell S. Sexner Last Updated : March 14, 2023