Edwin Aguiar v. State

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
EDWIN AGUIAR,
Appellant,
v. Case No. 5D15-1627
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed April 1, 2016
Appeal from the Circuit Court
for Osceola County,
A. James Craner, Judge.
James S. Purdy, Public Defender, and
George D.E. Burden, Assistant Public
Defender, Daytona Beach, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.
EN BANC
LAWSON, C.J.
Edwin Aguiar appeals his convictions and sentences on charges of possession of
cocaine, attempted tampering with physical evidence and possession of drug
paraphernalia, to which he pled nolo contendre, reserving the right to challenge the denial
of his dispositive motion to suppress.1 We affirm, and write to consider whether a police
officer may, as a matter of course, detain a passenger who attempts to leave the scene
of a lawful traffic stop without violating the passenger’s Fourth Amendment rights. See
Amends. IV, XIV, U.S. Const. (protecting the “right of the people to be secure in their
persons . . . against unreasonable searches and seizures”). We hold that the officer can,
and recede from F.J.R. v. State, 922 So. 2d 308 (Fla. 5th DCA 2006), which reached a
contrary conclusion relying upon Wilson v. State, 734 So. 2d 1107 (Fla. 4th DCA 1999),
certiorari denied, 529 U.S. 1124 (2000). We also certify conflict with Wilson v. State, and
with several other Florida district court opinions, to be discussed, that have followed
Wilson v. State.2
I.
Aguiar was the front-seat passenger in a vehicle being stopped because a brake
light was out and the driver was not wearing a seat belt. When the driver pulled into a
parking space in a restaurant parking lot, Aguiar immediately exited the passenger-side
door. The officer conducting the traffic stop ordered Aguiar back into the vehicle, and
Aguiar ultimately complied—after which the officer noticed the bag of cocaine for which
he was arrested. A panel of this court initially issued an opinion reversing the convictions
based upon Wilson v. State, which concluded that although a “traffic violation sufficiently
justifies subjecting the driver to detention . . . [t]he restraint on the liberty of the blameless
1
The trial court withheld adjudication and sentenced Aguiar to concurrent
probationary sentences of 3 years on the felony counts and 360 days on the misdemeanor
count.
2
To avoid confusion, this opinion will refer to Wilson v. State, 734 So. 2d 1107
(Fla. 4th DCA 1999) by its full name, “Wilson v. State,” and later, Maryland v. Wilson, 519
U.S. 408 (1997), by its full name, “Maryland v. Wilson.”
2
passenger is, in contrast, an unreasonable interference.” 734 So. 2d at 1112; see also
F.J.R., 922 So. 2d at 310 (“The courts of this state have consistently held that innocent
passengers in a vehicle which is stopped for a traffic violation may choose whether to
continue on with their business or return to the vehicle.” (citing Wilson, 734 So. 2d at
1111-12)).
The State then moved for rehearing and rehearing en banc, arguing that this case
presents an issue of exceptional importance and that the rule announced in Wilson v.
State should be reconsidered in light of more recent precedent from the United States
Supreme Court in Brendlin v. California, 551 U.S. 249 (2007) and Arizona v. Johnson,
555 U.S. 323 (2009).3 We agree, and have withdrawn the original panel opinion in order
to consider this issue en banc.4
II.
A.
We begin our discussion with Pennsylvania v. Mimms, 434 U.S. 106 (1977), which
held that a police officer may as a matter of course order the driver of a lawfully stopped
3
Article 1, Section 12 of the Florida Constitution parallels the protections of the
Fourth Amendment but also directs that the right of Florida citizens to be free from
unreasonable searches and seizures “shall be construed in conformity with the 4th
Amendment to the United States Constitution, as interpreted by the United States
Supreme Court.”
4
Although the rehearing rule generally prohibits a party from presenting a new
argument for the first time after the appeal has been decided, see Fla. R. App. P. 9.330(a)
(“A motion for rehearing . . . shall not present issues not previously raised in the
proceeding . . . .”); Cleveland v. State, 887 So. 2d 362, 364 (Fla. 5th DCA 2004) (“[I]t is a
rather fundamental principal of appellate practice and procedure that matters not argued
in the briefs may not be raised for the first time on a motion for rehearing.”) (summarizing
Ayer v. Bush, 775 So. 2d 368 (Fla. 4th DCA 2000)), the en banc rule does not contain
this limitation. See Fla. R. App. P. 9.331.
3
car to exit his or her vehicle. Mimms is significant, first, because it succinctly lays out the
analytical framework for this legal issue. As explained in Mimms, “[t]he touchstone of . .
. analysis under the Fourth Amendment is always ‘the reasonableness in all
circumstances of the particular governmental invasion of a citizen’s personal security[.]’”
Id. at 108-09 (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). That reasonableness, in
turn, “depends ‘on a balance between the public interest and the individual’s right to
personal security free from arbitrary interference by law officers.’” Id. at 109 (quoting
United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)).
Second, Mimms is significant because it involves the same public interest concern
at issue in our case: the “safety of the officer[.]” Id. at 110. In Mimms, the United States
Supreme Court recognized this interest as both “legitimate and weighty,” explaining:
We think it too plain for argument that the State's
proffered justification—the safety of the officer—is both
legitimate and weighty. “Certainly it would be unreasonable to
require that police officers take unnecessary risks in the
performance of their duties.” Terry v. Ohio, supra, 392 U.S. at
23, 88 S. Ct. at 1881. And we have specifically recognized the
inordinate risk confronting an officer as he approaches a
person seated in an automobile. “According to one study,
approximately 30% of police shootings occurred when a
police officer approached a suspect seated in an automobile.
Bristow, Police Officer Shootings—A Tactical Evaluation, 54
J.Crim.L.C. & P.S. 93 (1963).” Adams v. Williams, 407 U.S.
143, 148 n. 3, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612 (1972).
We are aware that not all these assaults occur when issuing
traffic summons, but we have before expressly declined to
accept the argument that traffic violations necessarily involve
less danger to officers than other types of confrontations.
United States v. Robinson, 414 U.S. 218, 234, 94 S. Ct. 467,
38 L. Ed. 2d 427 (1973). Indeed, it appears “that a significant
percentage of murders of police officers occurs when the
officers are making traffic stops.” Id., at 234, n. 5, 94 S. Ct. at
476, n. 5.
4
Id. The Court weighed the significant interest in officer safety against the additional
intrusion of requiring an already-stopped driver to exit the vehicle—an interest it classified
as “de minimus,” and concluded: “What is at most a mere inconvenience cannot prevail
when balanced against legitimate concerns for the officer’s safety.” Id. We readily agree
with this conclusion.
Finally, we also view a point made in dissent as significant. As explained by Justice
Stevens, the matter-of-course rule adopted by the majority in Mimms appeared to
“abandon ‘the central teaching of [the United States Supreme] Court’s Fourth Amendment
jurisprudence’—which has ordinarily required individualized inquiry into the particular
facts justifying every police intrusion—in favor of a general rule covering countless
situations.” Id. at 116 (Stevens, J., dissenting) (quoting Terry, 382 U.S. at 21 n.18). We
do not intend this observation as a criticism of the Mimms holding. To the contrary, given
that the primary interest recognized by the Court was the significant risk of harm faced
every time an officer makes a traffic stop, a bright line rule allowing the officer to exercise
control over the driver in all cases seems eminently reasonable.
In Maryland v. Wilson, 519 U.S. 408 (1997), the United States Supreme Court
extended “the rule of [Mimms], that a police officer may as a matter of course order the
driver of a lawfully stopped car to exit his vehicle . . . to passengers as well.” 519 U.S. at
410. Turning to the balancing test reiterated in Mimms, the Court explained:
On 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.
Regrettably, traffic stops may be dangerous encounters. In
1994 alone, there were 5,762 officer assaults and 11 officers
killed during traffic pursuits and stops. Federal Bureau of
Investigation, Uniform Crime Reports: Law Enforcement
Officers Killed and Assaulted 71, 33 (1994). In the case of
5
passengers, the danger of the officer's standing in the path of
oncoming traffic would not be present except in the case of a
passenger in the left rear seat, but the fact that there is more
than one occupant of the vehicle increases the possible
sources of harm to the officer.
On the personal liberty side of the balance, the case for
the passengers is in one sense stronger than that for the
driver. There is probable cause to believe that the driver has
committed a minor vehicular offense, but there is no such
reason to stop or detain the passengers. But as a practical
matter, the passengers are already stopped by virtue of the
stop of the vehicle. The only change in their circumstances
which will result from ordering them out of the car is that they
will be outside of, rather than inside of, the stopped car.
Outside the car, the passengers will be denied access to any
possible weapon that might be concealed in the interior of the
passenger compartment. It would seem that the possibility of
a violent encounter stems not from the ordinary reaction of a
motorist stopped for a speeding violation, but from the fact that
evidence of a more serious crime might be uncovered during
the stop. And the motivation of a passenger to employ
violence to prevent apprehension of such a crime is every bit
as great as that of the driver.
Id. at 413-14 (footnotes omitted).
The Court citing Michigan v. Summers, 452 U.S. 692 (1981), analogized to the rule
allowing officers to routinely exercise control over locations where search warrants are
being exercised. In Summers, when officers arrived to execute a lawful search warrant,
they immediately encountered an individual, later identified as Summers, coming down
the front steps of the residence, and ordered him back inside. Although “no special
danger to the police” was suggested by the evidence in that case, the Court noted that
any search for narcotics could “give rise to sudden violence” and therefore justified a rule
authorizing “officers [to] routinely exercise unquestioned command of the situation” in
order to minimize the “risk of harm to both the police and the occupants[.]” Id. at 414
6
(quoting Summers, 452 U.S. at 702-03). After discussing Summers, the Court concluded
its analysis:
In summary, danger to an officer from a traffic stop is
likely to be greater when there are passengers in addition to
the driver in the stopped car. While there is not the same
basis for ordering the passengers out of the car as there is for
ordering the driver out, the additional intrusion on the
passenger is minimal. We therefore hold that an officer
making a traffic stop may order passengers to get out of the
car pending completion of the stop.
Maryland v. Wilson, 519 U.S. at 414-15 (footnote omitted).
Significantly, the reasoning in Maryland v. Wilson would seem to support a broad
rule also allowing officers to routinely exercise command of all vehicle occupants for the
reasonable duration of a traffic stop. However, no passenger in that case attempted to
leave, and the Court expressly declined to address that broader issue, explaining:
Maryland urges us to go further and hold that an officer may
forcibly detain a passenger for the entire duration of the stop.
But respondent was subjected to no detention based on the
stopping of the car once he had left it; his arrest was based
on probable cause to believe that he was guilty of possession
of cocaine with intent to distribute. The question which
Maryland wishes answered, therefore, is not presented by this
case, and we express no opinion upon it.
Id. at 415, n.3.
B.
This unanswered question from Maryland v. Wilson was presented to the Fourth
District in Wilson v. State. Instead of focusing on the broader officer safety concerns
relating to all traffic stops, addressed in Maryland v. Wilson, and to special concerns that
would arise from allowing passengers to leave, the Fourth District focused on a narrower
point from Maryland v. Wilson that once “[o]utside the car, the passengers will be denied
7
access to any possible weapon that might be concealed in the interior of the passenger
compartment.” Wilson v. State, 734 So. 2d at 1111 (quoting Maryland v. Wilson, 519 U.S.
at 414). Focusing on this narrower issue, the Fourth District accurately pointed out that
“passenger access to weapons potentially concealed inside a car, would be increased if
passengers were forced back inside the vehicle” for safety purposes. Wilson v. State,
734 So. 2d at 1111. The Fourth District also noted that the Supreme Court had not
discussed specific potential dangers that might arise from ordering a passenger to stay,
and had expressly declined to address the issue. Id.
It appears to us that the Fourth District misunderstood the Supreme Court’s
express decision not to address their issue, and its implications for interpreting that case.
The Court has, in its own words, “consistently refused to give” advanced “expressions of
legal judgment upon issues which remain unfocused because they are not pressed before
the Court with that clear concreteness provided when a question emerges precisely
framed and necessary for decision from a clash of adversary argument exploring every
aspect of a multifaceted situation[.]” United States v. Fruehauf, 365 U.S. 146, 157 (1961)
(citations omitted). In other words, the Court’s careful practice is to only address the
narrow question presented by the facts before it. The fact that the Court did not discuss
any heightened dangers that could arise from allowing a passenger to walk away,
uncontrolled, from the immediate scene, does not mean that those dangers do not exist.
They do.
When an officer approaches any vehicle stopped for a traffic infraction, the officer
needs to be on vigilant alert, ready to react to violence that could come from any occupant
inside the vehicle. A departing passenger is a distraction that divides the officer’s focus
8
and thereby increases the risk of harm to the officer. As that passenger moves further
from the vehicle, it becomes impossible for the officer to watch the departing passenger
and the remaining occupants. If the officer focuses on the potential threat from the
passenger, violence could erupt from an occupant—robbing the officer of any meaningful
opportunity to react. If the officer focuses instead on the occupants, the departing
passenger could turn and attack. Even when the departing passenger is out of sight, the
passenger could pose a risk of harm to the officer. Especially if armed, that person could
easily attack from a concealed location away from the vehicle.5 A careful officer would
be cognizant of this potential threat from the moment that the departing passenger was
out of sight. This distraction would increase the risk to the officer, even if the passenger
did not return.
Next, the Fourth District addressed the second interest to be balanced—“the
individual’s right to personal security free from arbitrary interference by law officers.”
Mimms, 434 U.S. at 109. The Fourth District found that “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.” Wilson v. State, 734 So. 2d at 1111-12. While we question this
conclusion, even if detaining a passenger who desires to leave is more burdensome than
directing a stopped passenger to step out of the vehicle, the infringement is minimal in
5
As explained again in Johnson, “the risk of a violent encounter in a traffic-stop
setting ‘stems . . . from the fact that evidence of a more serious crime might be uncovered
during the stop.’” 555 U.S. at 331 (quoting Maryland v. Wilson, 519 U.S. at 414). A
passenger who leaves out of fear that evidence of a more serious crime might be
discovered could surely realize that he has left evidence linking him to that crime in the
vehicle—either physical evidence or a witness who can identify him. Then, a passenger
whose initial response was flight could turn to a response of fight.
9
light of the fact that: (1) the passenger’s planned mode of travel has already been lawfully
interrupted; (2) the passenger has already been “stopped” due to the driver’s lawful
detention; and (3) routine traffic stops are brief in duration.
Balancing the public interest (as viewed through the lens of Maryland v. Wilson,
which was focused on a different question), the Fourth District concluded that generalized
officer safety concerns could not justify further detention of “innocent passengers” in all
cases. Consequently, the Fourth District held that “[a] wholly innocent passenger should
have the right to choose whether to continue on with his business or return to the vehicle
and remain by his driver-companion's side.” Id. at 1112. We disagree with this
conclusion. Because the legitimate and weighty concern of officer safety can only be
addressed “if the officers routinely exercise unquestioned command of the situation[,]”
Maryland v. Wilson, 519 U.S. at 414 (quoting Summers, 452 U.S. at 703), we believe that
this interest outweighs the minimal intrusion on those few passengers who might prefer
to leave the scene.
However, since Wilson v. State, it appears that neither Florida courts nor the State
of Florida have questioned its holding, until now. See J.R.P. v. State, 942 So. 2d 452,
454 (Fla. 2d DCA 2006) (reversing passenger’s delinquency adjudication based on
Wilson v. State); Fricano v. State, 939 So. 2d 324 (Fla. 4th DCA 2006) (expressly applying
Wilson v. State and reversing conviction of taxi cab passenger who was detained after
traffic stop of cab); F.J.R., 922 So. 2d at 310-11 (recognizing Wilson v. State as accurately
reflecting settled Florida law and reversing conviction where the officer ordered
passenger attempting to leave scene to stop despite lack of any articulated, particularized
safety concern justifying detention); State v. McClendon, 845 So. 2d 233 (Fla. 4th DCA
10
2003) (applying Wilson v. State but reversing suppression order where
defendant/passenger made no attempt to leave the scene of the traffic stop and where
the officer expressed particularized safety concerns which reasonably justified ordering
the passenger back into the vehicle in that case); Faulkner v. State, 834 So. 2d 400 (Fla.
2d DCA 2003) (reversing conviction of detained “innocent passenger” based upon rule
announced in Wilson v. State); Barrios v. State, 807 So. 2d 814 (Fla. 4th DCA 2002)
(applying Wilson v. State and reversing “innocent passenger’s” convictions on theory that
officer had no lawful authority to detain the passenger at the scene of the stop, so that
the arrest for resisting the officer’s command to stay was improper and any evidence of
crimes found in search incident to arrest for resisting should have been suppressed).
There is no need to discuss these Florida cases in detail because all simply
followed Wilson v. State and none added anything to the Fourth District’s analysis. As
such, we simply note that our conclusion that Wilson v. State was incorrectly decided
necessarily brings us in conflict with these other cases as well—with the exception of
Fricano. As already mentioned, Fricano involved the detention of a taxi cab passenger.
The cab had been stopped for running a stop sign. Because a passenger in a private
vehicle will almost always have a more significant relationship to both the stopped vehicle
and its driver than a taxi cab passenger, that case may present different considerations
than our case. And, because that case is not before us, we express no opinion on it. For
that reason, we do not view this case as presenting a direct conflict with Fricano.
With respect to the conflict cases, we also agree with the State that these Florida
cases cannot be reconciled with Brendlin and Johnson. We address those cases now.
11
C.
In Brendlin, the Supreme Court considered whether a vehicle passenger has
standing under the Fourth Amendment to challenge the constitutionality of a traffic stop,
and held “that a passenger is seized as well [as the driver] and so may challenge the
constitutionality of the stop.” 551 U.S. at 252.6 The Appellant in that case had made no
attempt to leave the scene of the stop. Because Brendlin’s submission to the show of
governmental authority took “the form of passive acquiescence” and the officer did not
show “an unambiguous intent” to detain Brendlin by stopping the driver, the Court turned
to a test devised in United States v. Mendenhall, 446 U.S. 544 (1980), and Florida v.
Bostick, 501 U.S. 429 (1991), for determining “when a seizure occurs in response to
authority, and when it does not” in similar circumstances. Brendlin, 551 U.S. at 255. That
test is whether “a reasonable person would feel free to decline the officers’ requests or
[to] otherwise terminate the encounter[.]” Id. (citations and quotations omitted). The
Court unanimously concluded that during a traffic stop “any reasonable passenger would
have understood the police officers to be exercising control to the point that no one in the
car was free to depart without police permission.” Id. at 257. The unanimous Court
elaborated on its conclusion, as follows:
An officer who orders one particular car to pull over acts with
an implicit claim of right based on fault of some sort, and a
sensible person would not expect a police officer to allow
people to come and go freely from the physical focal point of
an investigation into faulty behavior or wrongdoing. If the likely
wrongdoing is not the driving, the passenger will reasonably
6
The Court also noted that “although [it had] not, until today, squarely answered
the question [of] whether a passenger is also seized, [the Court had| said over and over
in dicta that during a traffic stop an officer seizes everyone in the vehicle, not just the
driver.” 551 U.S. at 255-56 (citations omitted).
12
feel subject to suspicion owing to close association; but even
when the wrongdoing is only bad driving, the passenger will
expect to be subject to some scrutiny, and his attempt to leave
the scene would be so obviously likely to prompt an objection
from the officer that no passenger would feel free to leave in
the first place.
Id. (citation omitted).
While Brendlin did not involve a passenger who attempted to leave the scene,
there is a compelling link between the reasonableness finding in Brendlin and the
reasonableness inquiry in our case. Put simply, the United States Supreme Court’s
unanimous conclusion that “any reasonable passenger” would “obviously” expect police
to detain him or her for the duration of a traffic stop compels a conclusion that it was
reasonable for the officer to do so.
Also significant is the Brendlin court’s discussion of Maryland v. Wilson. The Court,
citing Maryland v. Wilson, concluded, “[I]t 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.” Id. at 258. The Court explained that in
fashioning the rule in Maryland v. Wilson, it had observed that “the risk of harm to both
the police and the occupants is minimized if the officers routinely exercise unquestioned
command of the situation.” Id. (citations and quotations omitted). The Court concluded
that the “societal expectation of unquestioned police command” would be “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.” Id. (citations and quotations
omitted). This discussion reinforces the notions that: (1) the public interest concern of
officer safety (at issue in our case) is best addressed by a blanket rule that allows the
13
officer to always exercise command of the scene during a traffic stop; and (2) an officer
cannot exercise unquestioned command of the scene unless he or she can direct the
movements of a passenger—even when the passenger wants to walk away.
Finally, Brendlin calls into question the rhetoric used by Florida’s appellate courts
when addressing this issue, specifically, our use of the term “innocent passenger” to
describe the passenger in a vehicle which is initially stopped based solely upon a traffic
infraction or other driver wrongdoing. The Court pointed out that “police may also stop a
car solely to investigate a passenger’s conduct[,]” and that “a passenger cannot assume,
merely from the fact of a traffic stop, that the driver’s conduct is the cause of the stop.”
Id. at 257 n.3 (citations omitted). The point here is that if a passenger cannot assume his
or her “innocence” at the time of a stop, a legal rule treating the passenger as “innocent”
is fraught with problems—because the rule tells passengers they are free to leave when
they may not be, and when they have no way of knowing with certainty whether an attempt
to leave could result in a lawful arrest and prosecution for the crime of resisting an officer
without violence.
In Johnson, a unanimous Court addressed another passenger issue involving a
traffic stop (and a passenger who did not attempt to leave the scene). Three officers
pulled over a vehicle “after a license plate check revealed that the vehicle’s registration
had been suspended for an insurance-related violation.” 555 U.S. at 327. “Under Arizona
law, the violation for which the vehicle was stopped constituted a civil infraction warranting
a citation.” Id. An officer requested that Johnson, a passenger wearing clothing
“consistent with [gang] membership[,]” exit the vehicle as authorized by Maryland v.
Wilson. Id. at 328. The officer reasonably suspected that Johnson might be armed and
14
dangerous, conducted a patdown of his person, and discovered a weapon. The ultimate
issue in Johnson was whether the Fourth Amendment permitted an officer to pat down a
passenger for weapons without first having any basis to suspect the passenger of any
recent or imminent criminal activity.
The Court first explained that under Terry:
[a] frisk (patdown for weapons) may be conducted without
violating the Fourth Amendment’s ban on unreasonable
searches and seizures . . . . if two conditions are met. First,
the investigatory stop must be lawful. That requirement is met
in an on-the-street encounter, Terry determined, when the
police officer reasonably suspects that the person
apprehended is committing or has committed a criminal
offense. Second, to proceed from a stop to a frisk, the police
officer must reasonably suspect that the person stopped is
armed and dangerous.
Id. at 326-27. Because the record demonstrated a reasonable basis for the officer to
suspect that Johnson was armed and dangerous, the Court’s focus was on the first Terry
requirement—that the passenger be lawfully stopped (detained). Not surprisingly, the
unanimous Court addressed the issue as a logical complement to its holding in Brendlin,
explaining:
For the duration of a traffic stop, we recently confirmed,
a police officer effectively seizes ‘everyone in the vehicle,’ the
driver and all passengers. [citing Brendlin, 551 U.S. at 255].
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.
Id. at 327. But, the Court did not stop there. Instead, it explained in detail why it viewed
the detention of the passenger as reasonable under the Fourth Amendment.
15
The Court first explained that most traffic stops are brief, such that they “resemble,
in duration and atmosphere, the kind of brief detention authorized in Terry.” Id. at 330
(quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)). Furthermore, because “as a
practical matter, the passengers are already stopped by virtue of the stop of the vehicle .
. . the additional intrusion on the passenger is minimal.” Id. at 332 (quoting Maryland v.
Wilson, 519 U.S. at 413-15). Against this “minimal” intrusion on personal liberty, the Court
once again balanced the “legitimate and weighty interest in officer safety,” id. at 331
(internal citation and quotation omitted), explaining:
[T]raffic stops are especially fraught with danger to police
officers. The risk of harm to both the police and the occupants
of a stopped vehicle is minimized, we have stressed, if the
officers routinely exercise unquestioned command of the
situation . . . .
....
. . . [And,] the same weighty interest in officer safety . .
. is present regardless of whether the occupant of the stopped
car is a driver or passenger.
....
. . . [This is because] the risk of a violent encounter in
a traffic-stop setting stems not from the ordinary reaction of a
motorist stopped for a speeding violation, but from the fact that
evidence of a more serious crime might be uncovered during
the stop . . . . [and that the] motivation of a passenger to
employ violence to prevent apprehension of such a crime . . .
is every bit as great as that of the driver.
Id. at 330-32 (internal citations and quotations omitted). Weighing these interests, the
Court found the “stop” of the passenger to be reasonable, and concluded that: “The
temporary seizure of driver and passengers ordinarily continues, and remains
reasonable, for the duration of the stop.” Id. at 333. The Court also reiterated that, “as
16
stated in Brendlin, a traffic stop of a car communicates to a reasonable passenger that
he or she is not free to terminate the encounter with the police and move about at will.”
Id.
To us, the import of Brendlin and Johnson is clear. The United States Supreme
Court has held that all occupants of a stopped vehicle are reasonably seized for the
duration of a traffic stop. This necessarily means that the passenger “is not free to
terminate the encounter[.]” Id. at 333.
D.
In conclusion, we hold that the officer did not violate Aguiar’s Fourth Amendment
rights by ordering him back into the vehicle. We recede from F.J.R. and certify conflict
with Wilson, J.R.P., McClendon, Faulkner, and Barrios.
AFFIRMED; CONFLICT CERTIFIED.
SAWAYA, PALMER, ORFINGER, TORPY, EVANDER, COHEN, BERGER, WALLIS,
LAMBERT and EDWARDS, JJ., concur.
17