A New Jersey appeals court has split over the circumstances in which police can order passengers out of a car after a traffic stop.

In a 2-1 ruling in State v. Bacome, the majority said police must have a reasonable and articulable belief that their safety is in danger if they are going to order passengers to exit a stopped vehicle.

In this case, Appellate Division Judge Clarkson Fisher Jr. said, the police used a passenger’s seat belt violation as a “ruse” to get the passenger, who also was the owner, out of an SUV and to get him to sign a consent-to-search form.

Fisher, joined by Judge Allison Accurso, said in their April 16 ruling that drugs seized during the course of the search should have been suppressed as being inadmissible.

Appellate Division Judge William Nugent dissented, saying that since it was the passenger and not the driver that committed the offense, it was reasonable for him to be ordered to get out of the car.

The issue was raised by defendant Tawian Bacome, who presently is serving a three-year prison sentence after pleading guilty to a charge of third-degree drug possession, according to the appeals court’s opinion. He argued, and the appeals court majority agreed, that his plea should be vacated because Middlesex County Superior Court Judge Dennis Nieves should have ordered the drug evidence suppressed.

Bacome was the driver of an SUV owned by the passenger, identified only as S.R., according to the opinion. Woodbridge Detectives Brian Jaremczak and Patrick Harris believed both men were drug users or drug sellers based largely on complaints about the large number of people entering and leaving Bacome’s house.

On April 29, 2011, they followed Bacome and S.R. as they drove to Newark. The detectives lost contact with the SUV on Frelinghuysen Avenue in Newark, so they returned to Woodbridge and awaited the pair’s return, the opinion said.

As the detective saw the SUV return to Woodbridge, they saw that S.R. was not wearing a seat belt and that gave them the authority to make the stop, according to the opinion.

At the suppression hearing, Jaremczak testified over defense objection that Harris saw Bacome lean forward as though he was trying to hide something under the seat. Harris was not present to corroborate that testimony, but the judge relied on that when he upheld the warrantless search, the opinion said.

Jaremczak testified during the suppression hearing that they ordered both Bacome and S.R. out of the SUV. Jaremczak testified that, as they exited, the detectives saw a rolled-up piece of paper in the shape of a straw and a Chore Boy Brillo pad, often used as a filter for a crack pipe, inside the SUV. After S.R. signed the consent-to-search form, they found 13 vials of crack hidden in a cigarette packet, according to the opinion.

Fisher said the state Supreme Court has differed from the U.S. Supreme Court over the issue of whether the police can order passengers to exit a vehicle during a traffic stop.

In 1977, the U.S. Supreme Court, in Pennsylvania v. Mimms, first ruled that drivers could be ordered to exit. The court expanded on its ruling 20 years later in Maryland v. Wilson to say passengers could be ordered out as well.

The New Jersey Supreme Court, however, refused to go that far, Fisher said, and, in State v. Smith, the court ruled in 1994 that the police must point to “specific and articulable facts” that would justify their belief that there was a heightened sense of danger that warranted ordering the passengers to exit as well.

Fisher said none of that was present here. Rather, he said, the officers were operating under the assumption that Bacome and S.R. were drug users or dealers or both and wanted to act on their “hunch” that they were engaged in illegal activity.

“If that was the only legitimate basis for the stop in this case—and it was—then S.R. should have been served with a summons and he and defendant permitted to go on their way,” Fisher said. “The mere fact that the vehicle’s occupants were traveling to and from Newark, or the fact that defendant received many visitors at his residence, did not suggest a danger was posed when the vehicle was stopped for a seat belt violation.

“Certainly, not every driver entering or leaving Newark may be assumed to be a drug user or a drug dealer,” he said. “We are not being unduly cynical in concluding what is plainly apparent: the unbuckled seat belt was a ruse for the stop and the officers were interested only in pursuing their hunch—concededly accurate—that the vehicle’s occupants were involved in illegal drug activity.”

Fisher said that was the only plausible explanation for why the officers waited on the Woodbridge border for Bacome and S.R. to return from Newark.

“Are we to believe they remained there for no other purpose but to ensure S.R. was wearing his seat belt on the return trip?” Fisher asked.

Nugent said the detectives acted properly.

“S.R.’s liberty interest in this case is no different from that of a driver who has committed a traffic violation,” he said.

The split ruling guarantees that the Supreme Court will hear an appeal if the state asks for one, and Bacome’s attorney, assistant deputy public defender Jacqueline Turner, said she believes that is where the case will end up.

“The ruling highlights the dichotomy between federal and New Jersey law,” she said. “In New Jersey, drivers and passengers have been treated separately. I would expect that the state will argue they should not be treated separately.”

Deputy Attorney General Frank Muroski said in a statement that the state will appeal the ruling to the state Supreme Court. "We believe that the [majority] misapplied Supreme Court precedent that requires added justification to order a passenger out of the stopped car.  Such a requirement exists only if the passenger was otherwise blameless," he said. The majority "was unduly influenced by its belief that the seatbelt violation was a 'ruse' to pursue a narcotics investigation.  An officer’s subjective beliefs do not defeat his objectively reasonable conclusion that a traffic offense has occurred, regardless of any other objectives he might entertain.  But we are gratified that Judge Nugent dissented and correctly recognized that precedent allows that when the passenger has himself engaged in conduct that causes the police to stop the car the right to order the passenger from the car is justified."