State of Florida v. Joshua Lyle Creller

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 -