“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. … 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).” Much later: “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.” Aguiar v. State, 2016 Fla. App. LEXIS 5027 (Fla. 5th DCA April 1, 2016):
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 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. 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 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 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.
. . .
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 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.
