       Third District Court of Appeal
                               State of Florida

                          Opinion filed July 26, 2017.

                              ________________

                               No. 3D16-1998
                         Lower Tribunal No. 15-21304
                             ________________


                          Roberto Suarez Lopez,
                                   Appellant,

                                       vs.

                            The State of Florida,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Stephen Millan,
Judge.

     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.

     EMAS, J.
                        ON MOTION FOR REHEARING

      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.

      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

1The officer testified he directed the driver to exit through the passenger side so he
would be better able to see if the driver had any weapons on him.

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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 (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

2 We note, however, that the length of the detention may convert an otherwise
reasonable temporary detention into an unreasonable one:

         If either the stopping of the car, the length of the passenger's detention
         thereafter, the scope of investigation directed at the passenger, or the
         passenger's removal from it are unreasonable in a Fourth Amendment
         sense, then surely the passenger has standing to object to those
         constitutional violations and to have suppressed any evidence found in
         the car which is their fruit.


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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 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

6 W. LaFave, Search and Seizure § 11.3(e), text accompanying notes 294-96 (5th
ed. and Supp. 2016) (cited with approval in Brendlin v. California, 551 U.S. 249,
259 (2007)). See also Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609,
1614 (2015) (holding that “the tolerable duration of police inquiries in the traffic-
stop context is determined by the seizure's ‘mission’—to address the traffic
violation that warranted the stop. . . and attend to related safety concerns,” and
concluding that a dog sniff is not an ordinary incident of a traffic stop and
prolonging the duration of a traffic stop for this purpose without reasonable
suspicion violates the Fourth Amendment).


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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 traffic stop to continue on his independent way is a greater
      intrusion upon personal liberty than an order simply directing a
      passenger out of the vehicle. Such an arbitrary interference with the
      freedom of movement of one who is not suspected of any illegal
      activity whatsoever cannot be classified as a de minimis intrusion.”

3 The court in Wilson acknowledged that it had earlier held, in Borski v. State, 712
So. 2d 787 (Fla. 4th DCA 1998), that a police officer could require a driver to
return to his vehicle for the remainder of a lawful traffic stop. Distinguishing that
case, the Wilson court noted:

      We have no difficulty determining, as we did in Doctor [v. State, 573
      So. 2d 157 (Fla. 4th DCA 1991)] and Borski, that the traffic violation
      sufficiently justifies subjecting the driver to detention—in or outside
      the vehicle. There is a legitimate need for adequate police control over
      the traffic violator for the time necessary to conclude the business of
      the stop. The restraint on the liberty of the blameless passenger is, in
      contrast, an unreasonable interference.

Wilson, 734 So. 2d at 1112.


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Id. at 1111-12.

      The court held:

      [A] police officer conducting a lawful stop may not, as a matter of
      course, order a passenger who has left the stopped vehicle to return to
      and remain in the vehicle until completion of the stop. The officer
      must have an articulable founded suspicion of criminal activity or a
      reasonable belief that the passenger poses a threat to the safety of the
      officer, himself, or others before ordering the passenger to return to
      and remain in the vehicle.

Id. at 1113.

      The United States Supreme Court, in Brendlin v. California, 551 U.S. 249

(2007) and Arizona v. Johnson, 555 U.S. 323 (2009) have addressed this question

and have determined that the Fourth Amendment is not violated under these

circumstances.4

      As the Supreme Court observed in Brendlin:

      It is also reasonable for passengers to expect that a police officer at
      the scene of a crime, arrest, or investigation will not let people move
      around in ways that could jeopardize his safety. In Maryland v.
      Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (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. Id., at 414–415, 117 S.Ct. 882;
      cf. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d
4 The Florida Constitution contains a provision protecting against unreasonable

searches and seizures. See Art. I, § 12, Fla. Const. (providing in part: “The right of
the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures. . . shall not be violated.”). However, that same
section contains a conformity clause: “This right shall be construed in conformity
with the 4th Amendment to the United States Constitution, as interpreted by the
United States Supreme Court.”


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      331 (1977) (per curiam) (driver may be ordered out of the car as a
      matter of course). 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.’ ” Wilson, supra, at 414, 117 S.Ct. 882
      (quoting Michigan v. Summers, 452 U.S. 692, 702–703, 101 S.Ct.
      2587, 69 L.Ed.2d 340 (1981)). What we have said in these opinions
      probably reflects a societal expectation of “ ‘unquestioned [police]
      command’ ” 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. Wilson, supra, at 414, 117 S.Ct. 882.

Brendlin, 551 U.S. at 258.

      In Johnson, the Court reaffirmed its Fourth Amendment holding in Brendlin:

      For the duration of a traffic stop, we recently confirmed, a police
      officer effectively seizes “everyone in the vehicle,” the driver and all
      passengers. Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400,
      168 L.Ed.2d 132 (2007). Accordingly, we hold that, in a traffic-stop
      setting, the first Terry condition—a lawful investigatory stop—is met
      whenever it is lawful for police to detain an automobile and its
      occupants pending inquiry into a vehicular violation. The police need
      not have, in addition, cause to believe any occupant of the vehicle is
      involved in criminal activity.

Johnson, 555 U.S. at 327.

      We decline Lopez’s invitation to follow Wilson.          Although our prior

decision in D.N. did not expressly reach the discrete issue raised here, we conclude

that the rationale for our decision in D.N.,      together with the United States

Supreme Court’s decisions in Brendlin and Johnson,5 lead inexorably to the

5 Importantly, Wilson was decided in 1999, prior to the United States Supreme
Court’s decisions in Brendlin and Johnson. To the extent that the Fourth District’s
decision survives Brendlin and Johnson, we acknowledge that our decision in the
instant case is in conflict with Wilson. We also acknowledge that our decision is

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conclusion that a police officer, consistent with the reasonableness requirement of

the Fourth Amendment, may order a passenger to exit a lawfully stopped vehicle

and may detain the passenger at the scene during the completion of the traffic stop.

Our holding in the instant case is consistent with, and supported by, the decisions

and analyses of two of our sister courts who have also addressed this issue. See

Presley v. State, 204 So. 3d 84 (Fla. 1st DCA 2016) (review granted, SC16-2089,

oral argument held June 7, 2017); Aguiar v. State, 199 So. 3d 920 (Fla. 5th DCA

2016) (en banc).

      Affirmed.




in conflict with the Second District’s decisions in J.R.P. v. State, 942 So. 2d 452
(Fla. 2d DCA 2006) and Faulkner v. State, 834 So. 2d 400 (Fla. 2d DCA 2003),
which agreed with Wilson and were likewise decided before Brendlin and Johnson.


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