Lopez v. State

• Decision Date: 26 July 2017
• Docket Number: No. 3D16-1998.,3D16-1998.
• Citation: 225 So.3d 330
• Parties: Roberto Suarez LOPEZ, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

225 So.3d 330

Roberto Suarez LOPEZ, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D16-1998.

District Court of Appeal of Florida, Third District.

Opinion filed July 26, 2017
Rehearing Denied July 26, 2017

George J. Vila, P.A., and George J. Vila, for appellant.

Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.

Before SUAREZ, EMAS and LOGUE, JJ.

ON MOTION FOR REHEARING

EMAS, J.

We deny appellant's motion for rehearing, withdraw our previous opinion, and substitute the following in its stead.

Roberto Suarez Lopez was a passenger in a vehicle that was improperly parked in a no parking zone. A police officer approached the passenger side of the vehicle and asked the driver for his driver's license and registration. After noticing that Lopez, the passenger, was exhibiting odd behavior and appearing nervous and shaking, the officer directed Lopez to exit and step to the rear of the vehicle. The officer then asked the driver to exit through the passenger side of the vehicle.¹ As the driver was complying, Lopez "took off" from the scene in a full sprint. As Lopez ran, the officer observed Lopez take from his pocket a baseball-sized object, wrapped in a white napkin, throw it over a fence, and keep running.

225 So.3d 331

The officer gave chase, eventually catching and arresting Lopez. The officer recovered the object, which was later determined to be cocaine. Lopez was charged with possession with intent to deliver cocaine, tampering with evidence, and resisting an officer without violence.

Lopez filed a motion to suppress evidence. Lopez concedes that the officer had the authority to order Lopez out of the vehicle. Lopez contends, however, that once Lopez exited the vehicle, he was free to leave and that, in the absence of reasonable suspicion, the officer could not lawfully require Lopez to remain at the scene for the duration of the traffic stop. Lopez contends that the action of the officer in detaining Lopez, by ordering him to remain at the rear of the vehicle, violated the Fourth Amendment. The trial court denied the motion to suppress. Thereafter, Lopez entered a negotiated plea, reserving the right to appeal the dispositive order denying his motion to suppress.

In D.N. v. State, 805 So.2d 63, 65 (Fla. 3d DCA 2002), we held that "in order to 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 Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) ). Such a minimal intrusion does not violate the reasonableness requirement of the Fourth Amendment, when balanced against the competing interest in officer safety and the need for the officer to control the traffic stop. We conclude that the same interest of officer safety compels the conclusion that an officer may order the exiting passenger to remain at the scene for the duration of the traffic stop.² To hold otherwise would not simply thwart this interest, but would increase the potential danger to the officer. A passenger whose movements at the scene cannot be restricted would be free not simply to leave the scene, but also to reposition himself to any location at the scene (for example, directly behind the officer), requiring the officer to divide his attention to monitor the movements and actions of both driver and passenger, while also conducting and completing the traffic stop within a reasonable time. This potential danger is magnified if multiple passengers are directed to exit the vehicle but whose movements thereafter cannot lawfully be restricted pending completion of the traffic stop.

Lopez urges us to follow the Fourth District's decision in Wilson v. State, 734 So.2d 1107 (Fla. 4th DCA 1999). In that case, Wilson was a passenger in a vehicle stopped for a traffic violation. Once the vehicle was stopped, Wilson exited the vehicle and began walking toward a bar located only a few feet away. The officer

225 So.3d 332

stopped Wilson from entering the bar and ordered him to return to and remain inside the vehicle during the traffic stop. Wilson complied and later on during the stop, the officer observed Wilson trying to conceal a pipe (containing marijuana) in the floorboard of the vehicle. During a subsequent search, cocaine was found on his person.

Wilson was charged with possession of cocaine, marijuana and drug paraphernalia. He moved to suppress the evidence, contending that, absent reasonable suspicion, the officer could not order a passenger to return to the stopped vehicle. The trial court denied the motion to suppress.

The Fourth District reversed and, distinguishing between the driver of a lawfully stopped vehicle and its passenger,³ observed:

[A] command preventing an innocent passenger from leaving the scene of a

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