Under New Jersey law, the driver can per se be ordered out of the car under Mimms, but not so with the passenger. Here, the trial court’s initial findings didn’t resolve this, and it was previously remanded. After the remand, the court reverses because there was no showing of a reason for ordering the passenger out of the car. Having no seatbelt on and coming from Newark is not indicative of criminal activity or a risk to offer safety. State v. Bacome, 2015 N.J. Super. LEXIS 63 (April 16, 2015):
The record unmistakably compels our agreement with the judge’s determination that there was an absence of proof on these critical questions. No officer testified to a heightened safety concern. No officer testified S.R. was capable of reaching under defendant’s seat if he remained seated in the passenger seat. No officer described the interior of the vehicle at all, let alone with enough concrete details from which an inference could be drawn that S.R. posed a danger if he remained in the passenger seat while being watched by an armed police officer. Absent findings that S.R. remaining in the vehicle created “a heightened awareness of danger,” Smith, supra, 134 N.J. at 618, the State could not sustain its burden of proof on this motion.
As we have already demonstrated, the mere fact that the vehicle traveled to and returned from the Newark area adds nothing to the circumstances. And the basis for the stop itself — S.R.’s unbuckled seatbelt — was not ground alone for ordering either individual out of the vehicle.11 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.