Wilson v. State

• Decision Date: 05 May 1999
• Docket Number: No. 98-1736.,98-1736.
• Citation: 734 So.2d 1107
• Parties: Jeff WILSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

734 So.2d 1107

Jeff WILSON, Appellant, v. STATE of Florida, Appellee.

No. 98-1736.

District Court of Appeal of Florida, Fourth District.

May 5, 1999.

Rehearing Denied July 20, 1999.

Richard L. Jorandby, Public Defender, and Mallorye Cunningham, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Maya Saxena, Assistant Attorney General, Fort Lauderdale, for appellee.

TAYLOR, J.

In this appeal we consider the question whether a police officer conducting a lawful traffic stop may lawfully order a passenger, who has left the stopped vehicle, to return to and remain in the vehicle for the duration of the stop, absent a reasonable suspicion of criminal activity or belief that the passenger poses a threat to the officer's safety.

Jeff Wilson entered a nolo contendere plea to possession of cocaine, possession of marijuana less than 20 grams, and possession of drug paraphernalia, reserving the right to appeal the denial of his motion to suppress. Because we find that the deputy was not justified in detaining the appellant, for investigative or safety purposes, during the traffic stop, we reverse the denial of his motion to suppress evidence.

At the hearing on the motion to suppress, neither the state nor the defendant presented any live testimony. Instead, they stipulated to admission of the arresting officer's probable cause affidavit and his deposition testimony. According to this evidence, Deputy Sean Murray of the Palm Beach County Sheriff's Office was on patrol on July 6, 1997, when he observed a Ford Escort traveling above the speed limit in the northbound lane on Military Trail. He checked the tag and discovered that the tag was registered to a Chevy pick-up truck. Deputy Murray activated his emergency lights to stop the Ford Escort just as it turned into the parking lot of the Getaway Bar. The deputy parked behind the Escort, exited his patrol car and approached the driver's side of the Escort. The appellant, who was a passenger in the Escort, opened his door and started walking towards the Getaway Bar, which was only five or ten feet away. Deputy Murray stopped the passenger from entering the bar and instructed him to return to the vehicle and remain inside until the traffic stop was completed. The passenger complied with his instructions.

Deputy Murray explained that he instructed the passenger to return to the car and remain there for safety concerns. The officer expressed concern for his own safety because of the bar's unsavory reputation for shootings and other violent incidents among its patrons. Murray acknowledged that he had no reason to suspect the passenger of committing a crime or possessing any weapons or contraband. However, he said his personal standard procedure on traffic stops was to require all occupants to remain inside the vehicle until he concluded the stop.¹

After the passenger re-entered the vehicle, Deputy Murray returned his attention to the driver. He noticed that the driver appeared to be extremely nervous and that his hands were shaking uncontrollably. He also observed the driver attempting to conceal something under the driver's seat of the car. At that point, the deputy removed the driver from the vehicle and patted him down. No weapons were discovered. Deputy Murray asked the driver for his driver's license. The driver responded that he did not have one. Whereupon, the deputy arrested the driver for driving without a license and placed him in the back seat of his patrol car. After placing the driver in his vehicle, the deputy headed back toward the Escort to obtain more vehicle information. As he approached the vehicle, Deputy Murray noticed the passenger trying to conceal something in the floorboard area. Peering through the passenger window, the deputy observed a brown drug pipe containing what he believed was marijuana on the floorboard beside the passenger's feet. He ordered the passenger out of the vehicle. While standing outside the vehicle, the passenger made a furtive movement as if he were trying to conceal something on his right side. The deputy patted him down for weapons. Although he did not discover any weapons, the deputy detected an odor of marijuana on the passenger's person. He searched the passenger and found a small plastic baggie containing cocaine. The deputy placed the passenger under arrest and charged him with possession of cocaine, possession of marijuana and possession of drug paraphernalia.

Appellant moved to suppress the evidence. He did not contest the lawfulness of the initial traffic stop; he argued that the deputy's ordering him to return to the vehicle and remain there for the duration of the stop constituted an unreasonable seizure under the Fourth Amendment. He contends that the trial court erred in denying his motion to suppress the evidence seized as a result of his unlawful detention.

We first observe that a trial court's ruling on a motion to suppress is clothed with a presumption of correctness and we must interpret the evidence and reasonable inferences derived therefrom in a manner most favorable to sustaining the trial court's ruling. See Rolling v. State, 695 So.2d 278, 291 (Fla.),

cert. denied, ___ U.S. ___, 118 S.Ct. 448, 139 L.Ed.2d 383 (1997); Johnson v. State, 438 So.2d 774 (Fla.1983)( citing McNamara v. State, 357 So.2d 410 (Fla.1978)).

To justify a temporary detention of an individual, a law enforcement officer must have a founded suspicion of criminal activity. Moore v. State, 584 So.2d 1122, 1123 (Fla. 4th DCA 1991); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978); § 901.151, Fla. Stat. (1997). A founded suspicion is one which has a factual foundation in the circumstances observed by the law enforcement officer, interpreted in light of the officer's knowledge and experience, indicating that the person detained either had committed, was committing or about to commit a crime. Bryant v. State, 577 So.2d 1372, 1374 (Fla. 1st DCA 1991).

At the hearing on the motion to suppress, the officer's deposition testimony revealed that he did not suspect the passenger of any criminal activity at the time he instructed him to return to the vehicle. The officer conceded that there was nothing unusual or suspicious about the passenger's behavior, but that it was simply his routine practice during traffic stops to request occupants to remain in the vehicle. Based on the officer's own testimony, we can conclude that he did not have the requisite founded suspicion of criminal activity for the stop. See Aguila v. State, 567 So.2d 1007 (Fla. 3d DCA 1990)

.

The state argues that, notwithstanding the absence of a founded suspicion for the passenger's detention, the deputy was justified in ordering the passenger to return to and remain in the vehicle to facilitate officer safety. In support of its position, the state analyzes the evolution of a series of automobile stop cases, whose constitutional principles, it contends, permit the police procedure utilized in this case. The state begins its analysis with Doctor v. State, 573 So.2d 157 (Fla. 4th DCA 1991), approved in part, quashed in part, 596 So.2d 442 (Fla.1992), wherein this court held that "when a police officer lawfully stops a car for a traffic infraction, his order to the driver or passenger to get out of the car is reasonable and permissible under the Fourth Amendment even though at the time of the stop the officer has no reason to suspect foul play from the particular driver or passenger." We explained in Doctor that:

An officer's interest in protecting himself or a fellow officer against an unsuspected assault by a driver or passenger and against accidental injury from passing traffic is both legitimate and weighty and the intrusion into the driver's or passenger's personal liberty is de minimis. See Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331, 336-37 (1977)

.

Id. at 159.

Mimms set forth a "bright line" rule allowing officers to order a lawfully stopped driver from the vehicle. The Supreme Court reached its conclusion after balancing the public interest in allowing this practice against the driver's right to personal security free from arbitrary interference by law enforcement. The Court reasoned that once the driver is already lawfully stopped, the incremental intrusion in requiring the driver to be detained outside the vehicle "can only be described as de minimis." Mimms, 434 U.S. at 111,

98 S.Ct. 330. Balanced against this "mere inconvenience" is the "legitimate and weighty" interest in protecting the officer's safety against criminal attacks. Id. at 110, 98 S.Ct. 330.

In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the Supreme Court extended the above rationale to passengers and held that a police officer may, as a matter of course, order the passengers in a lawfully stopped vehicle to exit the vehicle pending completion of the stop. The Court recalled its balancing analysis under the Fourth Amendment in the Mimms decision and noted that "[o]n the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger." Id.,117 S.Ct. at 885. Citing statistics, the Court noted that in 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops. Id. The Court observed, however, that one significant safety factor in Mimms was absent in Wilson: the danger to the officer of standing by the driver's door and in the path of oncoming traffic. Yet, the Court added, the "fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer." Id.,117 S.Ct. at 885. A primary concern highlighted in Wilson was a passenger's access to weapons:

Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the

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