Florida Supreme Court settles K-9 vehicle drug sweep conflict

Florida Supreme Court settles K-9 vehicle drug sweep conflict

The Florida Supreme Court, weighing a certified question regarding conflicting DCA rulings, has determined that K-9 units can order a suspect to exit a vehicle during a drug sweep.

“We hold that binding Fourth Amendment precedent permits a K-9 officer arriving midway through a lawful traffic stop to command the driver to exit the vehicle for officer safety before conducting a lawful vehicle sweep,” the ruling states.

The 5-1 ruling, State of Florida vs. Joshua Lyle Creller, No. SC2022-05245, was issued May 23.

Writing for the majority, Justice Renatha Francis noted that it is “well-settled that once a driver has been lawfully stopped for a traffic violation,” police can order a driver out of a vehicle for “officer safety reasons,” without violating the Fourth Amendment.

“The issue here is whether this well-settled rule applies to a K-9 officer arriving midway through a lawful traffic stop to perform a dog sniff sweep of a vehicle’s exterior. The Second District Court of Appeal said ‘no,’ certifying conflict with the Fifth District Court of Appeal in State v. Benjamin, 229 So. 3d 817, 825 (Fla. 2d DCA 2022).”

The case stemmed from a 2018 traffic stop that a narcotics officer asked uniformed Tampa police to make after the narcotics officer claimed to witness the suspect cut through a convenience store parking lot to avoid a redlight.

Joshua Creller refused to allow a search of his vehicle after he was approached by the uniformed officer who pulled him over, and the plainclothes officer who had been following him.

Police were still completing a traffic citation when a K-9 unit arrived. The K-9 officer, citing his own safety, asked Creller more than once to exit the vehicle. Police eventually forced Creller from the vehicle after he repeatedly refused.

Creller was charged with resisting arrest without violence. He also faced drug charges after police discovered he was carrying methamphetamine.

Creller was convicted after arguing unsuccessfully that he was unlawfully detained. The Second District Court reversed the conviction.

“The Second District held that Creller was unlawfully seized in violation of the Fourth Amendment when the initial traffic stop transformed into a narcotics investigation for which no prior probable cause existed,” the Supreme Court noted. “According to the Creller Court, the K-9 unit’s exit command for officer safety, the refusal of which led to Creller’s forcible removal and arrest, was something the trial court should have addressed.”

In reversing the conviction, the Second District certified a conflict with a 2017 Fifth District ruling in Benjamin, 229 So. 3d 442, which held that a “mid-stop exit command for the safety of the arriving K-9 officer was lawful,” the justices noted.

“There, the traffic officer pulled over a driver in a parking lot and requested a K-9 unit…While writing the citation, the K-9 arrived and asked the traffic officer to issue the exit command,” the Supreme Court noted.

The driver exited, revealing a firearm hidden behind his leg. The trial court granted the suspect’s motion to suppress the firearm, but the Fifth District reversed, after determining that the suspect was lawfully detained.

“As a result, the police officer could properly order Benjamin to exit the vehicle, even if the officer did not have a particularized basis to believe that Benjamin was a threat to the officer’s safety,” the justices noted.

The Second District disagreed with the Fifth, saying the Benjamin court “improperly stacked” two rulings — Pennsylvania v. Mimms, a 1977 U.S. Supreme Court decision that authorizes police to order a suspect out of a vehicle in a traffic stop, and Rodriguez v. United States, a 2015 decision that a traffic stop may not be prolonged after a ticket has been issued to conduct a K-9 drug sweep, unless “separately supported by reasonable, articulable suspicion.”

The justices determined that the Second Distict misread Rodriguez, “which does not modify, much less address the officer safety rules in Mimms to hold that the officer safety rule only applies to an officer completing the mission of the traffic stop. We also conclude that Rodriguez does not apply because the K-9 officer here attempted a sweep during a lawful traffic stop, not after.”

“We therefore agree with Benjamin that Mimms applies, and we conclude that a K-9 officer may order a driver to exit a vehicle during a lawful traffic stop for officer safety reasons.

Accordingly, we quash Creller and approve Benjamin.

After a thorough analysis of the cases, the justices determined that, “[b]ecause of the weighty interests in protecting the K-9 unit during this lawful traffic stop outweighed the de minimis temporary interference with Creller’s interest in remaining inside the vehicle, [the K-9 officer’s] exit command to Creller was reasonable under Mimms. The [K-9 officer] gave that command midway through the lawful traffic stop, and his doing so did not convert the stop into a narcotics investigation, even though narcotics were discovered.”

The majority opinion then stated, “[b]ased on the foregoing, we quash the Second District’s decision in Creller and approve the Fifth District’s decision in Benjamin. We hold that binding Fourth Amendment precedent permits a K-9 officer arriving midway through a lawful traffic stop to command the driver to exit the vehicle for officer safety before conducting a lawful vehicle sweep.”

Francis was joined in the opinion by Chief Justice Carlos Muñiz and Justices Charles Canady, John Couriel, and Jamie Grosshans. Justice Meredith Sasso, the newest member of the court, did not participate.

In his dissent, Justice Jorge Labarga asserted that “whether a law enforcement exit order is a constitutional seizure depends on the reasonableness of the order given its unique circumstances,” citing Terry v. Ohio, 392 U.S. 1, 19 (1968).

“Reasonableness ‘depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers,’” Labarga also asserted, citing United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).

The arbitrariness “of the vehicle sweep here, along with the evidence that removal was not necessary to ensure officer safety during issuance of the traffic citation, calls for us to apply Rodriquez,” Labarga argued.

In Creller’s case, there was probable cause to support the traffic stop, but the vehicle sweep was “admittedly based on no suspicion of criminal activity whatsoever,” Labarga noted.

Ordering a suspect to wait on the side of the road, with flashing police lights drawing attention to the scene, is not “innocuous,” Labarga argued.

“The stigma associated with the exit order jeopardizes the driver’s reputation in the community. This is especially the case in our contemporary social media environment in which videos are constantly uploaded with little or no context given. A driver forced to exit the vehicle for a K-9 sweep may be viewed by not only passersby, but also by anyone in the world.”

Originally published at https://www.floridabar.org/the-florida-bar-news/florida-supreme-court-settles-k-9-vehicle-drug-sweep-conflict/

Recent Articles

- Part of VUGA -send press release to distribution

Related Stories