If a cop says ‘get out of the car,’ get out of the car

You're pulled over on the side of highway, your passenger is sick, and a cop pulls up behind you. He smells alcohol in the car. If the state trooper orders you out of the car, do you have to get out?

Today, the Minnesota Court of Appeals said "yes," while ordering the reinstatement of driving-under-the-influence charges against a woman.

Last December, a Minnesota state trooper pulled up behind a stopped car on I-94 in Minneapolis when he noticed Julie Ann Klamar's passenger vomiting out the door. The trooper noticed Klamar's eyes were bloodshot and she agreed to a field sobriety test, which she flunked. Her blood alcohol level was later determined to be .122.

But the District Court tossed the case, ruling that the trooper didn't have enough evidence and had "prematurely" ordered the woman out of the car.

"Under the Minnesota Constitution, a person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter," the court said today.

It is generally established that a seizure occurs when a police officer stops a vehicle. But the trooper in this case did not stop Klamar's vehicle; he pulled up and parked behind the vehicle when it was already stopped along the side of the freeway. "[C]ourts generally have held that it does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car."

In addition, the Minnesota Supreme Court has held that an officer's use of a squad car's flashing red lights, when pulling up and stopping behind a car parked on the shoulder of a highway at night, does not turn the encounter into a Fourth Amendment seizure. But this court has found a show of authority sufficient to constitute a seizure where officers asked a person to exit a parked vehicle and approach the officer.

Is the smell of alcohol in a car with more than one person enough justification for a police officer to seize the driver? "Because the odor of alcohol emanating from the vehicle could have come from Klamar, from her passenger, or from another source in the vehicle, it was reasonable for the officer to physically remove Klamar from the other possible sources," the court ruled today.

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