         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

             Appellant,

 v.                                                     Case No. 5D16-4152

LARON CARTRELL BENJAMIN,

             Appellee.

________________________________/

Opinion filed October 20, 2017

Appeal from the Circuit Court
for Orange County,
Heather L. Higbee, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Deborah A. Chance,
Assistant Attorney General, Daytona
Beach, for Appellant.

James S. Purdy, Public Defender, and
David M. Dixon, Assistant Public Defender,
Daytona Beach, for Appellee.


EVANDER, J.

      The State appeals an order granting Laron Cartrell Benjamin’s motion to suppress

evidence seized after Benjamin was removed from his vehicle during a valid traffic stop.

The trial court granted Benjamin’s motion after determining that the officer’s decision to

order Benjamin to exit his vehicle was not based on a valid safety concern. We reverse.
       While on routine patrol, two Orlando Police Department officers observed

Benjamin driving a vehicle with illegally tinted windows. Benjamin entered a shopping

plaza and parked in front of a restaurant. The officers parked their patrol car behind

Benjamin’s car. After the officers approached Benjamin’s vehicle, one of the officers

informed Benjamin that his windows were dark and would be tested.                 During the

conversation, the officer also asked Benjamin for permission to search his car. Benjamin

refused. The officer then requested a canine unit to conduct an exterior search of the

vehicle. While the officer was writing the citation, the canine unit arrived. 1

       The canine handler told the initial responding officer, “Whenever you guys are

ready, you can do whatever you do to pull him out.” At that time, an officer directed

Benjamin to step out of the vehicle for the canine sniff. As Benjamin exited his vehicle,

the officer saw a firearm under the driver’s seat that had previously been hidden by

Benjamin’s leg. The firearm was seized, and Benjamin was arrested and charged with

possession of a firearm by a convicted felon.

       At the suppression hearing, the State presented testimony that for the safety of

occupants, the canine handler, and the canine itself, Orlando Police Department policy

required all occupants of a vehicle to be removed prior to conducting a canine sniff.

However, the trial court rejected this testimony, stating:

                     The problem arises when they remove the defendant
              from the car. And to—in order for a dog to do a sniff, it’s news
              to me that you have to extricate the defendant from the
              vehicle. It was—it’s concerning because the Court heard
              the—the speaking of the two officers indicating that they were



       1 The trial court found that the duration of the stop was not unlawfully prolonged.
This finding was supported by the evidence presented at the motion to suppress hearing.



                                              2
              going to find a way to search that car, and that’s not
              appropriate.

                     . . . [N]eeding to extricate the defendant from the car in
              order for the dog to do an exterior sniff is not something that
              this Court believes is an officer safety issue, and I do not find
              that part of the testimony to be credible. Therefore, I am
              granting the motion to suppress . . . .

       In Pennsylvania v. Mimms, 434 U.S. 106 (1977), the United States Supreme Court

held that once a motor vehicle has been lawfully detained for a traffic violation, police

officers may order the driver to get out of the vehicle without violating the Fourth

Amendment’s proscription of unreasonable searches and seizures.                In reaching its

decision, the Mimms Court found the “legitimate and weighty” interest of officer safety far

outweighed a driver’s interest in not being directed to step out of his or her vehicle:

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

                     ....

                      Against this important interest we are asked to weigh
              the intrusion into the driver’s personal liberty occasioned not
              by the initial stop of the vehicle, which was admittedly justified,
              but by the order to get out of the car. We think this additional
              intrusion can only be described as de minimus. The driver is
              being asked to expose to view very little more of his person
              than is already exposed. 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. Not only is the
              insistence of the police on the latter choice not a “serious
              intrusion upon the sanctity of the person,” but it hardly rises to
              the level of a “‘petty indignity.’” What is at most a mere
              inconvenience cannot prevail when balanced against
              legitimate concerns for the officer’s safety.

Id. at 110-11 (citations omitted).




                                              3
       In Maryland v. Wilson, 519 U.S. 408 (1997), the United States Supreme Court

recited that Mimms stood for the proposition that “a police officer may as a matter of

course order the driver of a lawfully stopped car to exit his vehicle.” 519 U.S. at 410.

Indeed, the Court characterized its holding in Mimms as creating a bright-line rule, stating,

“[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 . . . .” Id. at 413 n.1; see

also Presley v. State, 42 Fla. L. Weekly S817, S818 (Fla. Sep. 20, 2017) (stating that “[i]n

Mimms, the Supreme Court held that law enforcement officers during a traffic stop could

ask the driver to exit the vehicle without violating the Fourth Amendment”).

       In the instant case, the evidence established that Benjamin was lawfully detained.

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. Thus, the trial court erred in granting Benjamin’s motion to suppress.

       REVERSED and REMANDED.




TORPY and EDWARDS, JJ., concur.




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