Supreme Court of Florida ____________
No. SC2022-0524 ____________
STATE OF FLORIDA, Petitioner,
vs.
JOSHUA LYLE CRELLER, Respondent.
May 23, 2024
FRANCIS, J.
It is well-settled that once a driver has been lawfully stopped
for a traffic violation, police officers may order the driver out of the
vehicle for officer safety reasons without violating the Fourth
Amendment’s prohibition of unreasonable searches and seizures.
See Pennsylvania v. Mimms, 434 U.S. 106, 110, 111 n.6 (1977);
Maryland v. Wilson, 519 U.S. 408, 413 n.1 (1997) (“[T]hat we
typically avoid per se rules concerning searches and seizures does
not mean that we have always done so; Mimms itself drew a bright
line . . . .”). The issue here is whether this well-settled rule applies to a K-9 officer who arrives midway through a lawful traffic stop to
perform a dog sniff sweep of a vehicle’s exterior. The Second
District Court of Appeal said “no,” certifying conflict with the Fifth
District Court of Appeal in State v. Benjamin, 229 So. 3d 442 (Fla.
5th DCA 2017), which reached the opposite conclusion. Creller v.
State, 336 So. 3d 817, 825 (Fla. 2d DCA 2022).
We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. 1 For the
reasons that follow, we quash Creller and approve Benjamin.
I. Background
Police charged Joshua Lyle Creller (“Creller”) with resisting an
officer without violence following a 2018 traffic stop when he
refused to comply with a K-9 officer’s mid-stop command to exit his
vehicle for officer safety. Following a search incident to arrest,
Creller was also charged with possession of a controlled substance,
methamphetamine; he moved to suppress the evidence of its
discovery.
1. The State of Florida petitioned for review based on Creller’s certified conflict with Benjamin. In response, Creller also asked this Court to accept jurisdiction.
-2- At the suppression hearing, the trial court found the State’s
evidence credible, which established the following: on the date in
question, Officer Diaz, a plain-clothes, undercover officer with the
Tampa Police Department’s Tactical Narcotics Team (TNT), was
surveilling an area known for illegal narcotics activity. While doing
so, he observed Creller commit a traffic infraction, 2 so he followed
Creller’s truck for several blocks. He didn’t stop Creller’s vehicle
himself; instead, he radioed for a marked car with sirens and lights
to initiate the stop.
After the marked car stopped Creller’s truck, Officer Diaz and
the uniformed officer, Sergeant Covais, 3 approached Creller at his
window to speak with him. Fairly quickly into their encounter,
Officer Diaz asked Creller if he could search the vehicle. Creller
said no, at which point Officer Diaz called for a K-9 unit.
2. He cut through the parking lot of a gas station to avoid a red light in violation of section 316.074(2), Florida Statutes (2018). Creller, 336 So. 3d at 819.
3. Sergeant Covais was not present at the suppression hearing to testify.
-3- Officer Diaz also called for another backup officer to write the
traffic citation because he did not have the citation software on his
computer. 4 TNT member Officer Norman responded to the call and
quickly arrived on the scene. Officer Norman was tasked with
preparing Creller’s traffic citation.
Meanwhile, TNT member K-9 Officer Simmonds responded to
Officer Diaz’s call and arrived on scene several minutes later. After
identifying himself, Officer Simmonds asked Creller if he had
anything illegal in his possession. Creller said no. He then asked
Creller for permission to search the vehicle and Creller, again, said
no. At that point, he told Creller, “I need you to exit the vehicle for
my safety. You’re going to stand on the side of the sidewalk while I
get my dog to do a narcotic sweep . . . .” Officer Simmonds
explained that this was necessary because Creller was in control of
the vehicle, and Officer Simmonds did not want Creller to use his
vehicle to hit him or his dog.
4. At the hearing, Officer Diaz could not say whether Sergeant Covais had the ability to write the ticket.
-4- Creller refused. So Officer Simmonds warned him that
continued refusal could result in his arrest for obstruction. Creller
continued to refuse, even after Officer Simmonds explained that
exiting the vehicle was for officer safety.
After a final warning, Creller, now argumentative and
continuing to refuse to come out of the vehicle, was forcefully
removed. Officer Norman, who was still in the process of preparing
the citation, observed the struggle at Creller’s door and left his
computer to assist the other officers. Creller was subsequently
charged with resisting without violence and possession of
methamphetamine, the latter of which was discovered during a
search of his person when he was removed from his car.
At the conclusion of the evidence at the suppression hearing,
the parties and the trial court discussed, at length, Mimms, 434
U.S. 106 (holding that an officer may direct a driver to exit a vehicle
during a lawful traffic stop for officer safety), and Rodriguez v.
United States, 575 U.S. 348 (2015) (holding that a lawful traffic stop
may not be prolonged to conduct a dog sniff sweep after the traffic
citation has been issued unless separately supported by reasonable,
articulable suspicion). Following this discussion, and expressly
-5- finding that Rodriguez did not apply, the trial court denied Creller’s
motion to suppress. A jury convicted him, but the Second District
reversed on appeal. Creller, 336 So. 3d at 819.
The Second District’s Decision in Creller
The Second District held that Creller was unlawfully seized in
violation of the Fourth Amendment when the initial traffic stop
transformed into a narcotics investigation for which no prior
probable cause existed. Id. at 822-25. According to the Creller
court, the K-9 unit’s exit command for officer safety, the refusal of
which led to Creller’s forcible removal and arrest, was something
the trial court should have addressed. Id. at 822.
Discussing the inapplicability of Mimms and its progeny,
Wilson, 519 U.S. 408, to Creller’s case, the Second District
explained that the rule in both cases—that concerns for officer
safety meant an officer could lawfully order the occupant of a
vehicle out of it during a traffic stop—was conditioned on there
being an actual and continuing traffic stop. Id. at 822. But in
Creller’s case, the court opined the testimony established that the
necessity of ordering Creller out of the vehicle wasn’t realized until
after the attempted vehicle sweep. Id. This demonstrated that the
-6- traffic stop had detoured into a narcotics investigation. Id. at 822-
23. And such a scenario brought Creller’s case squarely in line
with Rodriguez rather than Mimms. Id.
In reversing the judgment and sentence, the Second District
certified conflict with Benjamin, 229 So. 3d 442. Benjamin held, on
facts similar to Creller’s, that a mid-stop exit command for the
safety of the arriving K-9 officer was lawful. Creller, 336 So. 3d at
823, 825. There, the traffic officer pulled over a driver in a parking
lot and requested a K-9 unit. Benjamin, 229 So. 3d at 442. While
writing the citation, the K-9 unit arrived and asked the traffic officer
to issue the exit command. Id. When the driver exited, the officer
saw that a firearm had been concealed behind the driver’s leg. Id.
The driver moved to suppress the firearm, which the trial court
granted, but the Fifth District reversed. Id. at 443-44.
In the ensuing decision that only expressly discussed Mimms,
the Fifth District held that Benjamin was lawfully detained. Id. at
444. “As a result, the police officer could properly order Benjamin
to exit his vehicle, even if the officer did not have a particularized
basis to believe that Benjamin was a threat to the officer’s safety.”
Id.
-7- Explaining why it disagreed with the Fifth District, the Creller
court opined that the Benjamin court improperly stacked Mimms
and Rodriguez: 5
The rationale relied upon by the Fifth District in Benjamin and applied by the trial court in this case essentially stacks the holdings in Rodriguez and Mimms: (1) vehicle sweeps are permissible when they do not prolong a valid traffic investigation; (2) officers may ask drivers to exit their vehicles during a valid traffic investigation; (3) therefore, as long as it does not prolong the traffic investigation, officers may order drivers to exit their vehicles for the vehicle sweep. However, this reasoning appears to be an erroneous extension of the carveouts in Mimms and Rodriguez: The Supreme Court in Rodriguez expressly indicated that a deviation from the mission of the traffic stop such as the K-9 unit officer’s attempted vehicle sweep enjoys no support from Mimms because “safety precautions taken in order to facilitate such detours” cannot “be justified on the same basis” as those taken to ensure officer safety for the purpose of conducting the traffic stop itself. See Rodriguez, 575 U.S. at 356-57.
Creller, 336 So. 3d at 823.
This case follows.
5. Yet, nowhere in the Benjamin opinion does the Fifth District discuss the Rodriguez case.
-8- II. Analysis
In Fourth Amendment suppression cases, we review legal
issues de novo and will sustain factual findings that are supported
by competent, substantial evidence. See Presley v. State, 227 So.
3d 95, 99 (Fla. 2017) (citing Twilegar v. State, 42 So. 3d 177, 192
(Fla. 2010)). We are constitutionally bound on search and seizure
issues to follow the decisions of the United States Supreme Court.
See art. I, § 12, Fla. Const. (“The right of the people to be secure in
their persons, houses, papers and effects against unreasonable
searches and seizures . . . shall be construed in conformity with the
4th Amendment to the United States Constitution, as interpreted by
the United States Supreme Court.”).
We first examine the specific United States Supreme Court
precedent at issue here: the officer safety rule under Mimms and
Wilson, followed by the dog sweep rule under Rodriguez’s
predecessor, Illinois v. Caballes, 543 U.S. 405 (2005), and
Rodriguez. From our examination of these cases, we conclude that
Creller misreads Rodriquez—which does not modify, much less
address the officer safety rule in Mimms—to hold that the officer
safety rule only applies to officers completing the mission of the
-9- traffic stop. We also conclude that Rodriguez does not apply
because the K-9 officer here attempted a sweep during a lawful
traffic stop, not after.
We therefore agree with Benjamin that Mimms applies, and we
conclude that a K-9 officer may order a driver to exit a vehicle
during a lawful traffic stop for officer safety reasons. Accordingly,
we quash Creller and approve Benjamin.
The Officer Safety Rule Under Mimms and Wilson
In Mimms, the United States Supreme Court held that an exit
command given by an officer during a lawful traffic stop is not
unusually harmful to an individual’s privacy; it is, instead, a “mere
inconvenience” because the driver is lawfully detained whether
inside the car or out. 434 U.S. at 109-11.
Mimms involved a traffic officer who had no particular
suspicion about the driver’s behavior but had a practice of asking
drivers to exit their vehicles as a “precautionary measure to afford a
degree of protection to the officer.” Id. at 109-10. Balancing the
officer’s safety against the driver’s privacy interests, the Supreme
Court found it “too plain for argument” that officer safety “is both
legitimate and weighty.” Id. at 110. The Supreme Court explained
- 10 - that “we have specifically recognized the inordinate risk confronting
an officer as he approaches a person seated in an automobile,”
including the risk of being assaulted or shot, as well as the “hazard
of accidental injury from passing traffic.” Id. at 110-11. On the
other hand, any intrusion into the driver’s privacy is de minimis and
a “mere inconvenience” given that the driver is already lawfully
detained whether inside the car or out. Id. at 111. Wilson later
established that Mimms’ holding was a “bright line” rule. 519 U.S.
at 413 n.1. 6
Dog Sniff Sweeps Under Caballes and Rodriguez
In Caballes, the Supreme Court held that a dog sniff sweep
could be conducted during a lawful traffic stop without offending
the Fourth Amendment. 543 U.S. at 410. In so holding, the
Supreme Court rejected reasoning that a sweep turns a stop into a
narcotics investigation that must be independently supported by
6. Mimms was extended in Wilson, 519 U.S. 408, to permit officers to also command vehicle passengers to exit during a lawful traffic stop. The Supreme Court reasoned in Wilson that “the motivation of a passenger to employ violence to prevent apprehension of [a more serious] crime is every bit as great as that of the driver.” Id. at 414.
- 11 - probable cause. Id. at 408. The Supreme Court explained that a
dog sniff sweep’s potential to sniff out drugs in the vehicle is not
even a search under the Fourth Amendment because it affects no
constitutionally protected interest in the driver’s privacy. Id. at
408-10. 7
7. As explained in Caballes:
Official conduct that does not “compromise any legitimate interest in privacy” is not a search subject to the Fourth Amendment. [United States v. Jacobsen, 466 U.S. 109, 123 (1984)]. We have held that any interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legitimate privacy interest.” Ibid. This is because the expectation “that certain facts will not come to the attention of the authorities” is not the same as an interest in “privacy that society is prepared to consider reasonable.” Id. at 122 (punctuation omitted). In United States v. Place, 462 U.S. 696 (1983), we treated a canine sniff by a well- trained narcotics-detection dog as “sui generis” because it “discloses only the presence or absence of narcotics, a contraband item.” Id. at 707; see also [Indianapolis v. Edmond, 531 U.S. 32, 40 (2000)]. . . . .... . . . A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
534 U.S. at 408-10.
- 12 - Expressly adhering to and reaffirming its decision in Caballes,
Rodriguez held that “a police stop exceeding the time needed to
handle the matter for which the stop was made violates the
Constitution’s shield against unreasonable seizures.” 575 U.S. at
350.
In Rodriguez, after the traffic citation was issued by the
officer—a K-9 officer—the driver was detained several more minutes
for the officer to conduct a dog sniff sweep. Id. at 351-52.
Rodriguez characterized the dog sniff sweep performed after
issuance of the traffic citation as a separate investigation unrelated
to the primary “mission” of the traffic stop. Id. at 355-56. Though
Rodriguez recognized that an officer may also “conduct certain
unrelated checks during an otherwise lawful traffic stop,” the officer
“may not do so in a way that prolongs the stop, absent the
reasonable suspicion ordinarily demanded to justify detaining an
individual.” Id. at 355.
For these reasons, “[a] seizure justified only by a police-
observed traffic violation . . . ‘become[s] unlawful if it is prolonged
beyond the time reasonably required to complete th[e] mission’ of
issuing a ticket for the violation.” Id. at 350-51 (alteration in
- 13 - original) (quoting Caballes, 543 U.S. at 407). “The Court so
recognized in Caballes, and [the Supreme Court] adhere[d] to the
line drawn in that decision.” Id. at 351.
Rodriguez Does Not Modify Mimms
Based on our review of Rodriguez and Mimms, we conclude
that Rodriguez neither analyzed the lawfulness of an exit command
nor directly addressed the central holding of Mimms. It analyzed
instead whether a traffic stop may be reasonably prolonged and the
driver further detained by several minutes after the traffic citation is
issued for a K-9 unit to perform a sweep.
Rodriguez distinguished the analogy to “officer safety interests”
in Mimms as being “different in kind from the Government’s
endeavor to detect crime in general or drug trafficking in
particular.” 575 U.S. at 356-57. Rodriguez noted that even if, by
analogy, “the imposition” of detaining the driver a few more minutes
for the K-9 sweep “was no more intrusive than the exit order in
Mimms, the dog sniff,” which Rodriguez observed is for the detection
of crime, “could not be justified on the same basis” as a de minimis
privacy intrusion. Id. In other words, Rodriguez said that the
traffic stop ended once the citation issued, and, even under the
- 14 - Mimms balancing analysis, a brief further detention for a dog sniff
sweep is not a mere inconvenience to the driver. 8
Rodriguez Does Not Apply; Mimms Does
Rodriguez centered on a traffic stop that was prolonged for a
dog sniff sweep after the citation had been issued. This observation
leads us to two conclusions for purposes of our analysis here.
First, Rodriguez does not apply to this case. In this case, the
attempted sweep occurred during a lawful traffic stop, not after a
traffic citation was issued. The Second District itself set forth these
facts, concluding both that the attempted K-9 sweep occurred
8. Mimms came up in Rodriguez in the context of rejecting the United States Court of Appeals for the Eighth Circuit’s de minimis rule permitting dog sniff sweeps after a traffic citation had been issued—a rule the Eighth Circuit developed by analogy to the balancing test performed in Mimms. Rodriguez, 575 U.S. at 353, 356. The Eighth Circuit held that detaining a driver a few more minutes after a traffic citation issued was a de minimis intrusion to the driver’s privacy when balanced against the government’s “strong interest in interdicting the flow of illegal drugs along the nation’s highways.” United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir. 1999), abrogated by Rodriguez, 575 U.S. 348. Just as the Second District did in Creller, the dissent either overlooks or ignores this context.
- 15 - during and did not prolong the traffic stop, and that the stop was
supported by probable cause. See Creller, 336 So. 3d at 821, 824.9
Second, Mimms does apply, and it permits a K-9 officer
attempting a sweep during a lawful traffic stop to issue an exit
command for officer safety. The exit command still only causes a
de minimis intrusion to the driver during a stop, while the K-9
officer’s safety far outweighs the driver’s interest in his location
9. In concluding that Rodriguez applies here, see dissenting op. at 20, the dissent misses the point. Rodriguez involved a completed traffic stop, not an ongoing one like the one at issue here. Having completed the mission of the stop, and issued the ticket, any further delay in Rodriguez was illegal absent some other independent, probable cause basis. Beyond that, the dissent’s footnote 12 quotation of language from Rodriguez, dissenting op. at 20, is missing critical context that further supports, rather than contradicts, our holding today. In full, the Rodriguez court was responding to criticism from Justice Alito’s dissenting opinion by reiterating that what was essential to any analysis of the lawfulness of the stop was whether it was prolonged by the dog sweep. See Rodriguez, 575 U.S. at 357 (“As we said in Caballes and reiterate today, a traffic stop ‘prolonged beyond’ that point [the amount of ‘time reasonably required to complete [the stop’s] mission’] is ‘unlawful.’ The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as Justice Alito supposes, but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop.’ ” (quoting Caballes, 543 U.S. at 407)) (citations omitted); see also id. at 370- 72 (Alito, J., dissenting). And the Second District in Creller specifically concluded that the stop here was not prolonged. 336 So. 3d at 821.
- 16 - during a lawful traffic stop: in his car or out. Further, the potential
for detecting criminal activity places a K-9 officer at an even greater
risk of danger. See Wilson, 519 U.S. at 414 (“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 as a practical matter, it makes little sense
why Mimms would not apply to a K-9 officer, because a K-9 officer
may be the officer initiating the stop. See, e.g., Rodriguez, 575 U.S.
at 351-52 (traffic stop initiated by a K-9 officer, who also conducted
the dog sniff sweep); Florida v. Harris, 568 U.S. 237, 240 (2013)
(same).10
This Case
There is no question here that Creller was lawfully stopped, or
that Officer Simmonds’ attempted sweep did not prolong the stop.
See Creller, 336 So. 3d at 821, 824. When Officer Simmonds
10. The dissent’s assertion that we “stacked” Mimms and Rodriguez, see dissenting op. at 21, is easily rebuffed by our analysis above, where we not only analyzed each case separately, but clearly concluded that Rodriguez does not apply to this case. If Rodriguez doesn’t apply in the first instance, it strains credulity to then conclude that its “carve-out” applies.
- 17 - arrived on scene, Officer Norman was still writing the ticket. Officer
Simmonds issued an exit command to Creller several times,
repeatedly explaining that it was for the safety of himself and his
dog. The fact that Creller was still in control of his vehicle made the
situation more dangerous to Officer Simmonds and his dog.
Because the weighty interests in protecting the K-9 unit during this
lawful traffic stop outweighed the de minimis temporary interference
with Creller’s interest in remaining inside his vehicle, Officer
Simmonds’ exit command to Creller was reasonable under Mimms.
Officer Simmonds gave that command midway through the lawful
traffic stop, and his doing so did not convert the stop into a
narcotics investigation, even though narcotics were discovered.
III. Conclusion
Based on the foregoing, we quash the Second District’s
decision in Creller and approve the Fifth District’s decision in
Benjamin. We hold that binding Fourth Amendment precedent
permits a K-9 officer arriving midway through a lawful traffic stop to
command the driver to exit the vehicle for officer safety before
conducting a lawful vehicle sweep.
It is so ordered.
- 18 - MUÑIZ, C.J., and CANADY, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., dissents with an opinion. SASSO, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
LABARGA, J., dissenting.
Whether a law enforcement exit order is a constitutional
seizure depends on the reasonableness of the order given its unique
circumstances. See Terry v. Ohio, 392 U.S. 1, 19 (1968).
Reasonableness “depends on a balance between the public interest
and the individual’s right to personal security free from arbitrary
interference by law officers.” United States v. Brignoni-Ponce, 422
U.S. 873, 878 (1975).
In this case, the majority holds that under the Fourth
Amendment, “a K-9 officer arriving midway through a lawful traffic
stop [may] command the driver to exit the vehicle for officer safety
before conducting a lawful vehicle sweep.” Majority op. at 18.
However, the arbitrariness of the vehicle sweep here, along with the
evidence that removal was not necessary to ensure officer safety
- 19 - during issuance of the traffic citation, calls for us to apply
Rodriguez. 11 I respectfully dissent.
The Second District correctly applied Rodriguez to conclude
that on balance, there was no justification to outweigh Creller’s
right to personal security. See Creller v. State, 336 So. 3d 817, 824
(Fla. 2d DCA 2022). In Rodriguez, the United States Supreme Court
explained that on-scene investigation of other crimes “detours from
th[e] mission” of the traffic stop. See 575 U.S. at 356. The Court
reasoned that such investigation and its related safety precautions
cannot be justified by officer safety, an interest that “stems from the
mission of the stop itself.” See id. at 356-57. The Court thus held
that the government’s interest in detecting drug trafficking was
outweighed by the driver’s right to personal security when an
arbitrary vehicle sweep prolongs a traffic stop that reasonably
should have been completed. See id. 12
11. Rodriguez v. United States, 575 U.S. 348, 356 (2015).
12. Notably, the Court reasoned that “[t]he critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket . . . .” Id. at 357.
- 20 - The majority “stacks” the holdings of Mimms 13 and Rodriguez
by overlooking the important Rodriguez carveout: “ ‘[S]afety
precautions taken in order to facilitate such detours [from the
traffic mission]’ cannot ‘be justified on the same basis’ as those
taken to ensure officer safety for the purpose of conducting the
traffic stop itself.” See Creller, 336 So. 3d at 823 (quoting
Rodriguez, 575 U.S. at 356-57).
In the present case, there was probable cause to support
Creller’s traffic infraction. Id. at 824. However, the vehicle sweep
was arbitrary. The record establishes that the K-9 officer was
conducting a random vehicle sweep “admittedly based on no
suspicion of criminal activity whatsoever.” Id. The record also
establishes that “[t]he first point in time at which an officer asked
Creller to exit the vehicle was when the K-9 unit officer asked him
to do so out of concern for the officer’s safety and that of his dog so
that he could conduct the vehicle sweep.” Id. at 822.
Like the vehicle sweep in Rodriguez, the exit order given by the
K-9 officer here was an “additional intrusion” into Creller’s right to
13. Pennsylvania v. Mimms, 434 U.S. 106, 110-11 (1977).
- 21 - personal security that detoured from the mission of the traffic stop.
See Rodriguez, 575 U.S. at 356 (citing Mimms, 434 U.S. at 110-11).
The lack of probable cause to support a belief that there was
contraband in Creller’s vehicle—coupled with the record evidence
that his removal was not necessary for officer safety in issuing the
traffic citation—leaves the government without a justification for the
exit order.
Moreover, Creller’s right to personal security carries more
weight than the majority affords it. An exit order is not an
innocuous request. While police search the vehicle, the driver must
stand on the side of the road in view of all passersby. The
implications heighten when, as in Creller’s case, the scene involves
two or more police cars with lights glaring and with an active K-9
unit. To put it simply, this intrusion cannot be characterized as
“de minimis.” See majority op. at 16-17. The stigma associated
with the exit order jeopardizes the driver’s reputation in the
community. This is especially the case in our contemporary social
media environment in which videos are constantly uploaded with
little or no context given. A driver forced to exit the vehicle for a K-9
- 22 - sweep may be viewed not only by passersby, but also by anyone
around the world.
Thus, I disagree with the majority that an exit order merely
affects “the driver’s interest in his location during a lawful traffic
stop: in his car or out.” See id. The exit command is an additional,
significant intrusion into the driver’s right to personal security. The
majority’s ends-justify-the-means emphasis on the presence of
contraband cannot justify the fact that innocent law-abiding people,
whose only misdeed may have been the unwitting commission of a
slight traffic infraction (e.g., failure to use a seat belt), may be
commanded to exit the vehicle or face the very real prospect of
forced removal.
In sum, the forced removal of a driver from the vehicle before
probable cause of the existence of contraband has been
established—and without any evidence that such seizure is
necessary to ensure officer safety during issuance of a traffic
citation—constitutes an unreasonable seizure without any
justification under the Fourth Amendment. For these reasons, I
dissent.
- 23 - Application for Review of the Decision of the District Court of Appeal Certified Direct Conflict of Decisions
Second District - Case No. 2D2019-3085
(Hillsborough County)
Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, David M. Costello, Deputy Solicitor General, and Robert Scott Schenck, Solicitor General Fellow, Tallahassee, Florida, and C. Suzanne Bechard, Chief Assistant Attorney General, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, Florida,
for Petitioner
Howard L. “Rex” Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,
for Respondent
Robert Wayne Evans of Allen, Norton & Blue, P.A., Tallahassee, Florida,
for Amicus Curiae Florida Sheriffs Association
J. David Marsey of Rumberger, Kirk & Caldwell, P.A., Tallahassee, Florida,
for Amicus Curiae Florida Police Chiefs Association
Christie S. Utt, General Counsel, Florida Department of Highway Safety and Motor Vehicles, Tallahassee, Florida,
for Amicus Curiae Florida Department of Highway Safety and Motor Vehicles
- 24 - Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, and Matthew J. Metz, Public Defender, and Robert Jackson Pearce III, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida,
for Amicus Curiae Florida Public Defender Association, Inc.
- 25 -