        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               October 19, 2010 Session

      STATE OF TENNESSEE v. WAYNE LAMAR DONALDSON, JR.

            Direct Appeal from the Criminal Court for Davidson County
                   No. 2009-C-2849     Cheryl Blackburn, Judge




              No. M2010-00690-CCA-R3-CD - Filed September 15, 2011


In an indictment returned by the Davidson County Grand Jury, Defendant Wayne Lamar
Donaldson, Jr., was charged with possession of, with intent to sell or deliver, twenty-six
grams or more of a substance containing cocaine within a drug-free school zone. The drugs
were seized after a traffic violation stop of Defendant by an officer of the Metropolitan
Davidson County Police Department. Defendant filed a motion to suppress all evidence
seized during the stop. Following an evidentiary hearing, the trial court entered an order
which granted the motion, and subsequently entered an order dismissing the indictment based
upon the State’s acknowledgment that it could not proceed to trial without the evidence. The
State has appealed. Based upon the finding of facts made by the trial court and the
application of the law to those facts, we affirm the judgment of the trial court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS,
J R., J., joined. D AVID H. W ELLES, S P.J., not participating.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant
District Attorney General, for the appellant, the State of Tennessee.

James Bryan Lewis, Nashville, Tennessee, for the appellee, Wayne Lamar Donaldson, Jr.
                                        OPINION

                      Factual Background and Trial Court’s Ruling

        Officer Joshua Baker testified that he was on routine patrol on Gallatin Road shortly
after midnight on the night of March 20, 2009, when he observed Defendant’s vehicle go
past the white line on Gallatin Road at the intersection with Old Hickory Boulevard. The
traffic light was red for the Defendant’s vehicle, which was in the “right turn only” lane.
Defendant turned right onto Old Hickory Boulevard without giving a turn signal. Officer
Baker was directly behind Defendant on Gallatin Road when Defendant turned onto Old
Hickory Boulevard. Based upon Officer Baker’s conclusion that Defendant had violated
traffic ordinances of Metropolitan Davidson County, he turned on his blue lights after
following Defendant on to Old Hickory Boulevard. Defendant promptly pulled into a Wal-
Mart parking lot and stopped.

       Defendant was the only person in his vehicle, and he remained seated in the driver’s
seat. Officer Baker approached Defendant’s vehicle and engaged in conversation with
Defendant while waiting to receive Defendant’s driver’s license and vehicle registration.
Once receiving those items, Officer Baker returned to his patrol car and did a records check,
obtained a criminal history of Defendant, and wrote up citations for Defendant for failure to
properly stop prior to a turn and failure to use a turn signal. Defendant remained inside his
own vehicle. Officer Baker testified that he learned from the criminal history that Defendant
“had some DUI’s, and I think he [Defendant] had some [drug possession] with intent
charges.” However, there were no active warrants for the arrest of Defendant.

       Officer Baker completed his work inside the patrol car and returned to Defendant’s
vehicle with the citations and Defendant’s driver’s license (and though not mentioned,
presumably the vehicle registration). He promptly asked Defendant to get out of his vehicle
because,

       I wanted to get a feel for him [Defendant]. It’s common that I ask people to
       get out of their vehicles to see their demeanor, see how they’re acting. I
       wanted to see if maybe he had been drinking to get a perspective of him.

       Officer Baker added that he was also going to give the citations to Defendant. After
Defendant stepped outside of his vehicle, Officer Baker looked down to the driver’s side
floorboard and saw “a clear plastic bag with a white powder substance, which is commonly
powder cocaine.” This substance was in fact the cocaine which led to Defendant’s
indictment.



                                             -2-
        During cross-examination, Officer Baker admitted that prior to having Defendant get
out of his vehicle, he did not detect an odor of alcohol on Defendant’s breath, and in fact had
no reason at all to believe that Defendant had been driving impaired. Officer Baker had no
suspicions that Defendant had any weapons or illegal drugs prior to Defendant exiting his
vehicle. Officer Baker agreed that he was back at his patrol car for approximately five
minutes before returning to Defendant’s vehicle. Officer Baker, when cross-examined about
the sequence of events surrounding when he was going to give Defendant the citations,
testified, “[w]hen I went back up to the vehicle to ask him [Defendant] to step out, part of
that was to speak with him and get him to sign the ticket.” Officer Baker, upon further
specific cross-examination as to why he required Defendant to get out of the vehicle despite
having no suspicions of Defendant being under the influence of intoxicants, of being armed,
or of possessing illegal drugs, testified,

       A.     It’s common practice to have people step out of the vehicle to sign their
              citations.

       Q.     Okay.

       A.     It’s at least my common practice as well as I also get - - I just - - I
              observe people, I ask them to step out, I talk to them. I normally have
              conversations with them out of the vehicle.

                                            ***

       Q.     But you stated you had him step out of the vehicle to observe him
              further; is that correct?

       A.     True.

       Q.     Why would you want to observe him further when you had no suspicion
              that he was armed, dangerous, or had any drugs on him? Why would
              you not just simply hand him the ticket inside the vehicle?
              [“][Defendant], sign it and you’re on your way.[”] Why would you not
              do that?

       A.     Like I said, I normally have people step out of the vehicle. I judge their
              demeanor, I see how they’re acting.

       Q.     Why would you need to judge his demeanor at this point if you had saw
              nothing out of the ordinary?

                                              -3-
       A.      Just it was part of him getting out of - - part of him signing the citation
               as well.

       Neither counsel for the State nor counsel for Defendant had any further questions of
Officer Baker. In response to questions from the trial court, Officer Baker testified that he
had returned to Defendant his driver’s license when he stepped out of his vehicle. The
officer also testified that he was in the process of handing the citations to Defendant when
he saw the cocaine on the floorboard after Defendant stepped out of the vehicle. There was
no further testimony at the hearing.

       The trial court took the matter under advisement and subsequently filed an order
granting the motion to suppress the cocaine as evidence. Defendant’s motion to suppress
challenged the initial stop as well as his assertion that the detention was unconstitutionally
extended by having Defendant exit his vehicle. In this appeal by the State, Defendant does
not challenge the trial court’s determination that the initial stop was constitutionally based
upon reasonable grounds that Defendant had violated traffic ordinances.

        In its order, the trial court concluded that while the initial traffic stop was valid, there
was no basis for Officer Baker to have Defendant exit the vehicle or for Officer Baker to
perform a search of the vehicle. Addressing one of the legal arguments raised by Defendant,
the trial court recognized that the duration of a stop must be “temporary and last no longer
than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500,
103 S.Ct. 1319, 1325 (1983).

        The trial court made the following factual findings. After writing the citations for the
traffic offenses, Officer Baker returned to Defendant’s vehicle and requested Defendant to
step outside of the vehicle so that Officer Baker “could observe Defendant’s demeanor and
see if [Defendant] had been drinking.” When Officer Baker initially spoke with Defendant
he did not detect alcohol on Defendant’s breath and had seen nothing to cause him to believe
Defendant was impaired. Officer Baker had completed writing the traffic citations while
inside his patrol car. Officer Baker gave an additional reason when asked why he had
Defendant step out of his vehicle: he wanted to speak with Defendant. Officer Baker’s
practice was to have drivers step outside of the vehicle to sign a citation, allowing Officer
Baker to observe the driver and his demeanor outside of the vehicle. Officer Baker did not
observe the cocaine until Defendant stepped out of the vehicle. Officer Baker had returned
the driver’s license to Defendant and was in the process of handing the citations to Defendant
when he observed the cocaine on the floorboard.

      In its legal analysis, the trial court correctly concluded that the cocaine was in plain
view after Defendant was required to exit the vehicle. The issue, as correctly stated by the

                                                -4-
trial court, is whether Officer Baker had a basis to have Defendant step outside of his vehicle.
While stating that “[a] police officer may, as a matter of course, ask a driver to exit his or her
vehicle as part of a traffic stop,” relying upon Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct.
330, 54 L.Ed.2d 331 (1977), the trial court, as noted above, qualified reliance upon Mimms
by the legal principle that traffic stop detentions may not last longer than is necessary for the
purpose of the stop, relying upon Florida v. Royer, 460 U.S. 491 (1983).

       The trial court concluded its findings of fact and conclusions of law in the order
granting the motion to suppress by stating as follows:

       Here, Officer Baker testified that he approached Defendant’s vehicle to give
       him the traffic citation and return Defendant’s driver’s license. Thus, for all
       intensive [sic] purposes, the traffic stop had concluded. Officer Baker was
       unable to articulate any reason as to why further observation of Defendant
       was necessary in this case. The request for Defendant to exit the vehicle was
       not reasonably related to the stop. Accordingly, the Court GRANTS
       Defendant’s suppression motion. The evidence seized from Defendant’s
       vehicle and person is deemed inadmissible. (emphasis added)

        After receiving notice of the trial court’s ruling that Defendant had prevailed on the
motion to suppress, the State promptly filed with the trial court clerk a motion to reconsider,
arguing first that it had not been given the opportunity in the trial court to argue its position
on the legal issues presented. Our review of the transcript does not support this assertion by
the State, and it is not raised by the State on appeal. The second ground for reconsideration
was the State’s assertion that the trial court’s ruling was “contrary to established case law.”
The crux of the State’s argument in the trial court in the motion to reconsider, and continuing
on appeal, is that the traffic stop could not be completed until after Defendant had signed the
traffic citations as required by law. See Tenn. Code Ann. § 55-10-207(b) (2008 Replc.)
Furthermore, the State asserted in the trial court and also on appeal to the effect that Mimms
gives a police officer carte blanche authority to require a driver to exit his vehicle at any time
and for any reason before a valid traffic stop is legally concluded. In the motion to
reconsider, the State argued,

       Pennsylvania v. Mimms, 434 U.S. 106 (1977), stands for the proposition that
       an officer may, as a matter of course, ask that a driver step out of the vehicle
       during a traffic stop. This does not require the officer to state, on a case-by-
       case basis, that he was concerned for his safety. This is essentially a bright
       line rule permitting a minimal inconvenience to the driver. The Supreme
       Court concluded that the need for officer safety outweighed the benign nature
       of this intrusion.

                                               -5-
        The trial court entered an order denying the motion to reconsider. In it, the court
reiterated that the justification for the traffic stop had concluded before Defendant stepped
out of the vehicle - the officer had returned Defendant’s driver’s license to him and the
citations had been completed and only required Defendant’s signature. The trial court added
that its ruling would have been different had Officer Baker not yet returned the driver’s
license to Defendant when he asked Defendant to exit the vehicle. The trial court also stated
its finding that “Officer Baker’s request for Defendant to exit the vehicle was not reasonably
related in scope to the circumstances which justified [the] initial stop.”

                                            Analysis

      In State v. Brown, 294 S.W.3d 553 (Tenn. 2009), our supreme court has stated the
appropriate standard of review for this case:

       On appeal from the denial of a motion to suppress, we defer to the trial court’s
       findings of fact unless the evidence in the record preponderates against them.
       State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The “credibility of the
       witnesses, the weight and value of the evidence, and [the] resolution of
       conflicts in the evidence are matters entrusted to the trial [court] as the trier of
       fact.” Id. The prevailing party in the trial court is afforded ‘the strongest
       legitimate view of the evidence . . . as well as all reasonable and legitimate
       inferences that may be drawn from that evidence.” Id.

Brown, 294 S.W.3d at 561.

       Also, in Brown, we find the applicable law we must follow in disposing of the State’s
appeal from the trial court’s grant of Defendant’s motion to suppress:

       Both the federal and state constitutions protect against unreasonable searches
       and seizures. The Fourth Amendment to the United States Constitution
       provides that “[t]he right of the people to be secure in their persons, houses,
       papers, and effects, against unreasonable searches and seizures, shall not be
       violated.” Article I, section 7 of the Tennessee Constitution similarly
       guarantees “[t]hat the people shall be secure in their persons, houses, papers
       and possessions, from unreasonable searches and seizures.” “[U]nder both the
       federal constitution and our state constitution, a search without a warrant is
       presumptively unreasonable, and any evidence obtained pursuant to such a
       search is subject to suppression unless the state demonstrates that the search
       was conducted under one of the narrowly defined exceptions to the warrant
       requirement.” State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005).

                                               -6-
                                              ***

       When the police have probable cause to believe that a traffic violation has
       occurred, the temporary detention of an individual during the stop of the
       vehicle is considered constitutionally reasonable, irrespective of the subjective
       motivations of the officer making the stop. Shren v. United States, 517 U.S.
       806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Vineyard, 958
       S.W.2d 730, 734 (Tenn. 1997). The proper inquiry is whether, during the
       detention, the officer diligently pursued a means of investigation that was
       likely to confirm or dispel suspicion quickly. State v. Simpson, 968 S.W.2d
       776, 783 (Tenn. 1998). A reasonable traffic stop can become unreasonable
       “‘if the time, manner or scope of the investigation exceeds the proper
       parameters.’” State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (quoting
       United States v. Childs, 256 F.3d 559, 564 (7 th Cir. 2001)).

Brown, 294 S.W.3d at 561-62.

        As noted above, it appears the State has continued to maintain, as it did at the trial
court level, that Mimms for all practical purposes grants law enforcement officers carte
blanche authority to remove a person from his or her vehicle at any time, and for any reason,
prior to the conclusion of a traffic stop; further the State insists that a valid traffic stop can
never end, whenever issuance of a traffic citation is authorized, until such time as the driver
has signed the traffic citation. In essence, the State asserts that a request for a driver to get
out of the vehicle, referred to as a “Mimms request,” is virtually unassailable as long as the
officer has withheld the driver’s ability to finish the tenure of the traffic stop.

      We deem it necessary to quote verbatim from the State’s brief the passages which
support our understanding of the State’s argument:

       It is well-settled that a police officer may ask a driver to get out of his vehicle
       as a legitimate part of any traffic stop and that a traffic stop is not concluded
       until a citation is issued. (emphasis added) State’s brief, p. 9

       Our Supreme Court has also recognized that no constitutional violations
       occur when a police officer asks a driver to get out of his car during a traffic
       stop . . . . And this Court [the Court of Criminal Appeals] has followed suit.
       (emphasis added) (citations omitted) State’s brief, p. 10.

       . . . it was constitutionally permissible for Officer Baker to ask the defendant
       to get out of his car. At the time of the request, the traffic stop was still in

                                               -7-
       progress because the defendant had not signed the citation and Officer
       Baker had not issued it. (emphasis added) State’s brief, p. 11.

       In [suppressing the evidence] the trial court made several errors. First, the
       court defined the issue as “whether the officer had a basis to request Defendant
       to step out of the vehicle” or, alternatively, “whether the conduct of the police
       officer was reasonable considering the totality of the circumstances.” [record
       citation omitted]. However, other than the fact of [sic] that a traffic stop
       was in progress, Officer Baker did not need a reason to ask the defendant
       to step out of his car. As previously demonstrated, the United States Supreme
       Court, our state Supreme Court, and [the Court of Criminal Appeals] have held
       that a police officer may ask a driver to step from his car as a legitimate part
       of any traffic stop and doing so does not give rise to any constitutional
       concerns. (emphasis added) State’s brief, p. 11-12.

       Consequently, the only basis a police officer needs to make [a Mimms] request
       is that the [Mimms] request [to get out of the vehicle] be part of a valid traffic
       stop. (emphasis added) State’s brief, p. 12.

       Finally, the [Mimms] request does not unreasonably expand the scope of the
       stop. Any additional investigation occasioned by the request is incidental to
       the request, the objective reasonablness of which is beyond question.
       (emphasis added) State’s brief, pp. 13-14.

        In addition to arguing the broad permissibility of, and authority for, allowing a Mimms
request, the State, as indicated above, asserts that the trial court erroneously framed the issue
and erroneously concluded that the traffic stop ended when Officer Baker returned the
driver’s license to Defendant. The State argues that case law supports its assertion that a
traffic stop ceases to be a seizure only after the officer issues “a traffic citation or warning
and returns a driver’s license and registration.” State v. McCrary, 45 S.W.3d 36, 42 (Tenn.
Crim. App. 2000). However, the holding in that case was not a list of the requirements
necessary for a traffic stop to conclude. Instead, the issue in McCrary, and in the case it
relied upon, State v. Ashworth, 3 S.W.3d 25, 29-30 (Tenn. Crim. App. 1999), was whether
a valid stop had ended such that the continued encounter between the law enforcement
officer and the driver transformed to a consensual encounter and allowed what otherwise
might be improper comments, i.e., requests for consent to search, etc., to be constitutionally
proper. “When a traffic stop ceases to be a detention and the driver voluntarily consents to
additional questioning, no further seizure occurs.”              Ashworth, 3 S.W.3d at 30.
Consequently, we do not agree with the State that McCrary and Ashworth hold that the
legitimacy of a traffic stop for United States and Tennessee Constitutional purposes in all

                                               -8-
cases never stops until: the driver’s license and the vehicle’s registration have been returned
to the driver and the traffic citation (if applicable) has been signed by the driver to complete
the process of issuance of the citation.

        We will now address the cases relied upon by the State to support its argument that
the Mimms request in this case did not violate Defendant’s constitutional rights. The analysis
will begin with Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977). In Mimms, the
defendant was pulled over by two Philadelphia police officers because the vehicle he was
driving had an expired license plate. One of the officers asked the defendant at the beginning
of the “stop” to step out of the car and produce his “owner’s card” and his driver’s license.
When the defendant complied, the officer noticed a bulge under the defendant’s sports jacket;
the officer frisked the defendant because he feared the bulge might be a weapon. This
resulted in the discovery of a .38 caliber revolver in the defendant’s waistband.

        As a result of his arrest at the scene for carrying a concealed deadly weapon and for
unlawfully carrying a firearm without a license, the defendant was ultimately indicted for the
same offenses. He filed a motion to suppress the revolver from evidence, which was denied.
Following a trial, he was convicted of both charges. The Supreme Court of Pennsylvania
reversed the conviction, holding that the revolver should have been suppressed because it
was seized in violation of the guarantees of the Fourth and Fourteenth Amendments to the
United States Constitution. According to the United States Supreme Court’s opinion, the
high court in Pennsylvania concluded the initial stop of the defendant’s car was proper, and
the frisk for a weapon was proper once a bulge was detected when the defendant was outside
the vehicle. However, the Pennsylvania Court felt that the search was still “constitutionally
infirm because the officer’s order to [the defendant] to get out of the car was an
impermissible ‘seizure.’” Mimms, 434 U.S. at 108, 98 S.Ct. at 332. The basis for the
Pennsylvania high court’s ruling was that “the officer could not point to ‘objective
observable facts to support a suspicion that criminal activity was afoot or that the occupants
of the vehicle posed a threat to police safety.’” Id. (citing Mimms, 471 Pa. 546, 552, 370
A.2d 1157, 1160 (1977)).

        The United States Supreme Court granted the petition for certiorari brought by the
Commonwealth of Pennsylvania, and in a per curiam opinion the majority reversed the
judgment of the Pennsylvania Supreme Court. As mentioned above, the Mimms court noted
that the police officer approached the defendant’s vehicle first thing and asked the defendant
to step from the vehicle at the same time as he was asking the defendant to produce his
driver’s license and “owner’s card.” The Mimms court stated that “[i]t was apparently [the
officer’s] practice to order all drivers out of their vehicles as a matter of course whenever
they had been stopped for a traffic violation.” Mimms, 434 U.S. at 110. The justification



                                              -9-
given by the State’s attorney for this policy was because the “precautionary measure”
afforded “a degree of protection to the officer.” Id.

       Agreeing with the State’s argument, the United States Supreme Court stated,

       We think it too plain for argument that the State’s proffered justification –
       the safety of the officer – is both legitimate and weighty.

                                             ***
       The police have already lawfully decided that the driver shall be briefly
       detained; the only question is whether he shall spend that period sitting in
       the driver’s seat of his car or standing alongside it.

                                             ***
       What is at most a mere inconvenience cannot prevail when balanced against
       legitimate concerns for the officer’s safety.

Id. at 110-11 (emphasis added).

       What is clear from the facts in Mimms is that the officer had the defendant get out of
his car immediately as the officer was requiring the defendant to hand over his driver’s
license and his owner’s card, and was doing this for the officer’s safety and protection, and
for no other apparent reason. Furthermore, it is clear that the Supreme Court in Mimms
reached its holding on the basis of balancing the act of ordering the driver out of the car
(under the stated circumstances) against legitimate concerns for officer safety. In footnote
6 of the Mimms decision the Court made this comment:

       Contrary to the suggestion in the dissent of our Brother STEVENS [sic], post,
       [98 S.Ct.] at [339], we do not hold today that “whenever an officer has an
       occasion to speak with the driver of a vehicle, he may also order the driver out
       of the car.” We hold only that once a motor vehicle has been lawfully detained
       for a traffic violation, the police officers may order the driver to get out of the
       vehicle without violating the Fourth Amendment’s proscription of
       unreasonable searches and seizures.

Mimms, 434 U.S. at 111, n. 6.

       The first sentence of footnote 6 in Mimms supports our conclusion that the Supreme
Court did not intend for officers to have carte blanche authority to always order drivers out

                                              -10-
of their vehicles under any and all circumstances. In light of the facts of Mimms, and the
Supreme Court’s corresponding emphasis upon officer safety in the text of the opinion, we
conclude that the second sentence in footnote 6 explains that an officer’s order to a driver in
a traffic stop, to exit his or her vehicle, is not always a violation of the Fourth Amendment’s
protection against unreasonable searches and seizures.

        The State in the case sub judice argues that the trial court erred by relying upon the
United States Supreme Court’s decision in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319
(1983), an opinion filed about five years after Mimms. The State acknowledges that Royer
holds that traffic stops must be “temporary and last no longer than necessary to effectuate the
purpose of the stop.” Royer, 460 U.S. at 500, 103 S.Ct. at 1325. The State asserts that rather
than being “countervailing rules of law” as construed by the trial court, “a Mimms request
falls squarely within the parameters established by Royer.”

        In State v. Berrios, 235 S.W.3d 99 (Tenn. 2007), (also relied upon by the State in its
brief) our state supreme court acknowledged Mimms by stating it held “that an officer may,
as a matter of course, ask that a driver step out of the vehicle during a traffic stop.” Id. at
106. However, in Berrios, the officer went beyond the extent necessary to effectuate the
purposes of the stop, and our supreme court reiterated its earlier holding in State v. Cox, 171
S.W.3d 174 (Tenn. 2005) and quoted from Cox’s adoption of the rationale in Royer:

       The duration of [a traffic] stop, however, must be “temporary and last no
       longer than necessary to effectuate the purpose of the stop.” “The proper
       inquiry is whether during the detention the police diligently pursued a means
       of investigation that was likely to confirm or dispel their suspicions quickly.”
       A traffic stop may be deemed “unreasonable,” if the “‘time, manner or scope
       of the investigation exceeds the proper parameters.’”

       Id. at 179-80 (citations omitted).

Berrios, 235 S.W.3d at 106-07.

       Accordingly, we disagree with the implication in the State’s brief that a Mimms
request will always fall within the Royer dictates and never violate the parameters established
by Royer. In another case relied on by the State, State v. Hanning, 296 S.W.3d 44 (Tenn.
2009), the issue was whether the police officer had sufficient information based only upon
an anonymous tip of a recklessly driven semi-truck on the interstate, plus corroborating
information he observed, in order to initiate an investigatory stop of a semi-truck parked in
the emergency lane of the northbound exit from the interstate. Id. at 46. In that case the



                                             -11-
propriety of the officer ordering the driver of the semi-truck to exit the vehicle immediately
was not an issue.

       The Supreme Court stated,

       Having justifiably detained [the defendant] based upon reasonable suspicion
       of criminal activity, [the officer] approached the door of the truck where he .
       . . properly asked [the defendant] to step from the truck. See State v. Berrios,
       235 S.W.3d 99, 106 (Tenn. 2007) (citing Pennsylvania v. Mimms, 434 U.S.
       106, 109-11, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (holding that once a vehicle
       has been lawfully detained, an officer may, as a matter of course, order the
       driver to step out of the vehicle.)) Thereafter, [the officer] properly
       administered field sobriety tests, establishing probable cause to arrest [the
       defendant] for driving under the influence.

Hanning, 296 S.W.3d at 54.

       We note that the officer in Hanning immediately ordered the driver from the semi-
truck upon detaining the truck, with use of the blue lights of his patrol car, which was parked
close to the front of the semi-truck. Id. at 46-47. After asking if the defendant “had been
drinking,” the officer administered various field sobriety tests, which implicitly could only
be administered outside of the vehicle.

        In State v. Brown, 294 S.W.3d 553 (Tenn. 2009), our Supreme Court cited with
approval Berrios quoting Mimms for the proposition that an order for a driver to exit a
vehicle can only be described as a “de minimus” intrusion or a “mere inconvenience.”
Brown, 294 S.W.3d at 562. Again, however, in Brown the issue was not the officer’s order
for the driver to step from the vehicle. The issues were whether the detention exceeded the
scope of the traffic stop because the officer immediately began searching the vehicle for
illegal drugs at the beginning of the traffic stop; whether the defendant gave a valid consent
to search the vehicle; and whether the search exceeded the scope of the consent, if valid. Id.
at 557, 562-65. In Brown, the Court held that the time, manner, and scope of the officer’s
investigation did not exceed the parameters of the traffic stop. Id. at 562. The trial court in
the case sub judice reached the opposite conclusion in Defendant’s case.

       In State v. Harris, 280 S.W.3d 832 (Tenn. Crim. App. 2008), the defendant was
driving with one passenger when a police officer stopped him for violation of the seat belt
law. The officer approached the defendant and asked him to produce his car registration and
insurance documents, which the defendant replied he did not have in his possession. Thus,
there were three citations for traffic violations which needed to be issued. The officer then

                                             -12-
asked the defendant to go ahead and exit his vehicle “so the officer could ‘issue citations for
seat belt, registration and insurance’” violations. Id., 280 S.W.3d at 837. A pat down search
for weapons yielded no weapons or contraband. While another office who soon arrived on
the scene completed writing out the citations, the first officer walked around the defendant’s
vehicle with a drug sniffing dog. The dog “hit” on the passenger side door. The first officer
then did a more thorough search of the defendant’s person and found a seven-gram rock of
cocaine in the defendant’s crotch area. In summary, the defendant’s issues on appeal were
(1) whether the search and seizure exceeded the scope of the traffic stop; (2) the validity of
the initial stop; and (3) whether the “hit” by the canine on the passenger door justified the
second search of the defendant’s person. Id., 280 S.W.3d at 838. From the opinion, we
glean that the only relevance of removal of the defendant from his vehicle as to any issue on
appeal was whether, in that case, the removal improperly extended the legitimate time and
scope of a traffic stop. Our court summarized the consideration of this factor as follows:

               The next event of possible constitutional significance is the officer’s
       requesting the defendant to stand outside his car while the officer wrote the
       citations for the seatbelt, registration, and financial responsibility violations.
       Although this action arguably exacerbated the seizure in progress, we agree
       with the trial court that the officer’s habit of having motorists exit their
       vehicles during the completion of paperwork was a justifiable safety measure,
       especially in view of the benign nature of the intrusion. See Pennsylvania v.
       Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331 (1977)
       (holding that an officer may, as a matter of course, ask that a driver step out of
       the vehicle during a traffic stop); State v. Pulley, 863 S.W.2d 29, 34 (Tenn.
       1993) (“‘The reasonableness of a stop turns on the facts and circumstances of
       each case [including] . . . the nature and scope of the intrusion’”) (quoting
       United States v. Mendenhall, 446 U.S. 544, 561, 100 S.Ct. 1870, 1881, 64
       L.Ed.2d 497 (1980) (Powell, J., concurring));

                                             ***

       While focused on his paperwork, an officer is especially vulnerable to the
       seclusion and procurement of a weapon by a detainee who is sitting inside a
       vehicle.

Harris, 280 S.W.3d at 840.

        We note three things from Harris which distinguish it from the case sub judice. First,
the trial court in Harris made a factual finding that the officer’s habit of having a motorist,
as the defendant there, get out of the vehicle during completion of the paperwork was a

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justifiable safety measure. The trial court in the case sub judice did not make such a finding.
Next, the officer had the defendant in Harris exit the vehicle early in the encounter, and
clearly solely for furtherance of the issuance of citations in that case, and finally, the process
of doing the paperwork by the officer in Harris had not even started when he ordered the
defendant out of his car. In the case sub judice, the officer had fully completed his portion
of the paperwork. Concerns of safety from the fact that Officer Baker would be distracted
from Defendant sitting in his car, while Officer Baker was filling out paperwork while
standing next to Defendant’s car, did not exist as in the situation in Harris.

        In the case sub judice the trial court heard the testimony of the sole witness who
testified and observed his demeanor. Implicitly, if not also explicitly, the trial court made
credibility determinations that the officer’s explanation for having Defendant get out of the
car for safety reasons at the end of the traffic stop was not credible. The trial court factually
found that the legitimate purpose of the traffic stop had ended before Defendant was ordered
to exit the vehicle for the purpose of the officer to talk to Defendant and further observe
Defendant’s demeanor outside of the vehicle. The trial court concluded that the officer had
no appropriate grounds to extend the seizure of Defendant at the time he was ordered to get
out of his car. We are bound in this case, under the applicable law cited above, by the trial
court’s credibility determinations, and the weight and value placed on the evidence, unless
the evidence preponderates against the trial court’s determination. Brown, 294 S.W.3d at
561. In the case the record does not preponderate against the findings of the trial court. The
State is not entitled to relief in this appeal.

                                       CONCLUSION

        After review of the entire record and briefs of the parties, we affirm the judgment of
the trial court.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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