Catherine Montgomery v. the State of Florida

• Court: District Court of Appeal of Florida
• Decided: April 30, 2025
• Docket: 3D2023-1112
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 30, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-1112 Lower Tribunal No. 23-MM-198-A-K ________________

Catherine Montgomery, Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the County Court for Monroe County, Albert L. Kelley, Judge.

Michael Ufferman Law Firm, P.A., and Michael Ufferman and Laurel Cornell Niles (Tallahassee), for appellant.

James Uthmeier, Attorney General, and Daniel Colmenares, Assistant Attorney General, for appellee.

Before EMAS, SCALES and GOODEN, JJ.

PER CURIAM. Affirmed. See Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977)

(holding that “once a motor vehicle has been lawfully detained for a traffic

violation, the police officers may order the driver to get out of the vehicle

without violating the Fourth Amendment's proscription of unreasonable

searches”); Maryland v. Wilson, 519 U.S. 408, 413-14 (1997) (holding “the

rule of Mimms applies to passengers as well as to drivers,” and explaining

that the rationale for allowing passengers to be ordered out of the vehicle “is

in one sense stronger than that for the driver. . . . [T]he passengers are

already stopped by virtue of the stop of the vehicle. The only change in their

circumstances which will result from ordering them out of the car is that they

will be outside of, rather than inside of, the stopped car. Outside the car, the

passengers will be denied access to any possible weapon that might be

concealed in the interior of the passenger compartment. It would seem that

the possibility of a violent encounter stems not from the ordinary reaction of

a motorist stopped for a speeding violation, but from the fact that evidence

of a more serious crime might be uncovered during the stop. And the

motivation of a passenger to employ violence to prevent apprehension of

such a crime is every bit as great as that of the driver.”); Brendlin v. California,

551 U.S. 249, 258 (2007) (“It is also reasonable for passengers to expect

that a police officer at the scene of a crime, arrest, or investigation will not let

2 people move around in ways that could jeopardize his safety. In Maryland v.

Wilson, 519 U.S. 408 (1997) we held that during a lawful traffic stop an officer

may order a passenger out of the car as a precautionary measure, without

reasonable suspicion that the passenger poses a safety risk. In fashioning

this rule, we invoked our earlier statement that ‘[t]he risk of harm to both the

police and the occupants is minimized if the officers routinely exercise

unquestioned command of the situation.’”) (quoting Michigan v. Summers,

452 U.S. 692, 702-703 (1981) (internal citations omitted)); see also Billips v.

State, 777 So. 2d 1094, 1095 (Fla. 3d DCA 2001) (affirming conviction for

resisting officer without violence, and finding police were engaged in lawful

execution of legal duty when they asked defendant to exit vehicle based on

a BOLO: “[T]he officers were [] legally justified in ordering Billips to exit the

vehicle in order to conduct a limited investigation, and her refusal to do so

clearly obstructed their investigation.”); D.N. v. State, 805 So. 2d 63, 65 (Fla.

3d DCA 2002) (“[T]o protect officer safety, a law enforcement officer

conducting a traffic stop may order any passenger, as well as the driver, to

exit the vehicle during the traffic stop.” (citing Wilson, 519 U.S. at 414-15)

(“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. We therefore hold that an officer making a traffic stop

3 may order passengers to get out of the car pending completion of the

stop.”))); Aguiar v. State, 199 So. 3d 920, 928 (Fla. 5th DCA 2016) (observing

that the “societal expectation of unquestioned police command” would be “at

odds with any notion that a passenger would feel free to leave, or to

terminate the personal encounter any other way, without advance

permission” (quoting Brendlin, 551 U.S. at 258)).