THE STATE OF FLORIDA, APPELLANT,
v.
DWIGHT HERRON, APPELLEE

Fla. 3d DCA | 2011-08-10
No. 3D10-2538
Before WELLS, C.J., and SHEPHERD, J., and SCHWARTZ, Senior Judge.
68 So. 3d 330 Florida District Court of Appeal, Third District (2011) Caution
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The State appealed the suppression of a firearm seized from Herron during a traffic stop. The court affirmed the suppression, holding that the officer lacked reasonable suspicion to conduct a weapons pat-down based solely on nervousness and other general behavioral cues.


Holding

The court held that a lawful traffic stop alone does not justify a weapons pat-down, which requires reasonable suspicion that the suspect is armed with a dangerous weapon. The driver's nervousness, fidgetiness, and inability to produce documents, either singularly or cumulatively, were insufficient to create reasonable suspicion of being armed, and the after-the-fact observation of a bulge cannot justify the pat-down.


Headnotes

[1] Upon a lawful traffic stop, a police officer may order the driver out of the vehicle.

[2] A lawful traffic stop, in and of itself, does not give rise to a valid reason for a weapons pat-down.

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Key Quotes

“Upon a lawful traffic stop, a police officer may order the driver out of his vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (finding a police officer's order for the defendant to exit a vehicle to be a de minimis intrusion into the driver's personal liberty). However, such a stop does not, in and of itself, give rise to a valid reason for a weapons pat-down.”

Establishes that authority to order a driver out of a vehicle does not automatically justify a weapons pat-down search.

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Facts & Procedural History

Officer McGrath conducted a valid routine traffic stop of Herron and ordered him out of his vehicle for a pat-down search. Herron appeared nervous and…

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Opinion of the Court
SHEPHERD, J.

SHEPHERD, J.

The State of Florida appeals an order granting the defendant’s, Dwight Herron, motion to suppress a firearm seized from his person following a traffic stop. We affirm the order of the trial court.

After executing a valid routine traffic stop, Miami-Dade County Police Officer Robert McGrath ordered Herron out of his vehicle, and to place his hands on top of the roof for the purpose of an external pat-down search. After Herron placed his hands on the roof of the vehicle, Officer McGrath observed a bulge on the small of Herron’s back. The pat-down and subsequent search revealed the bulge to be a holster and firearm.

Upon a lawful traffic stop, a police officer may order the driver out of his vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (finding a police officer’s order for the defendant to exit a vehicle to be a de minimis intrusion into the driver’s personal liberty). However, such a stop does not, in and of itself, give rise to a valid reason for a weapons pat-down. See Richardson v. State, 599 So.2d 703, 705 (Fla. 1st DCA 1992). Such a pat-down is authorized only where the officer has a reasonable suspicion to believe the suspect is armed with a dangerous weapon. See § 901.151(5), Fla. Stat. (2009); Richardson, 599 So.2d at 705.

The State argues the pat-down was lawful because Herron appeared “excruciatingly] nervous, fidgety,” could not produce a driver’s license, proof of insurance, or car registration, and appeared to be “looking out the window [for] an avenue of escape.” The State further points out that the officer did not feel comfortable returning to his vehicle to run a DAVID System identification or mug shot system identification of the defendant under the circumstances.

These series of events, either singularly or cumulatively, are insufficient to justify a pat-down when there is no additional articulable suspicion the person is armed with a dangerous weapon. See Ray v. State, 849 So.2d 1222, 1225 (Fla. 4th DCA 2003); Richardson, 599 So.2d at 705. The after-the-fact observation of a bulge on the defendant cannot be used as justification for a pat-down. See Richardson, 599 So.2d at 705. Thus, evidence of Her-ron’s nervousness and Officer McGrath’s hunch that “there was something going on,” before the pat-down, were insufficient to create the requisite reasonable suspicion that Herron was armed with a dangerous weapon. See Coleman v. State, 990 So.2d 1255, 1255 (Fla. 4th DCA 2008).

We affirm the decision of the trial court.

*332SCHWARTZ, Senior Judge

(specially concurring).

In concurring, I have not overlooked D.N. v. State, 805 So.2d 63 (Fla. 3d DCA 2002), review denied, 819 So.2d 134 (Fla. 2002), in which we held that a police officer conducting a valid traffic stop could properly order a passenger to exit the vehicle and to place his hands where the officer could see them. While the facts of D.N. are certainly close to these, I think they are, nonetheless, decisively distinguishable. This is because the “hand-order” was not only de minimis but was incidental to, and an integral part of, the defendant’s response to the completely appropriate requirement that he get out of the car. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In this case, however, the officer avowedly ordered Herron to “assume the position,” as it were, by placing his hands on the car for the separate and specific purpose of conducting a pat-down for weapons. As the Court says, however, in the absence of a founded suspicion of criminal activity or prior indication that the defendant was armed, the officer had no constitutional authority to do so. See also Davis v. State, 67 So.3d 1125 (Fla. 5th DCA 2011).

Concurrence
SCHWARTZ, Senior Judge

SCHWARTZ, Senior Judge

(specially concurring).

In concurring, I have not overlooked D.N. v. State, 805 So. 2d 63 (Fla. 3d DCA 2002), review denied, 819 So. 2d 134 (Fla. 2002), in which we held that a police officer conducting a valid traffic stop could properly order a passenger to exit the vehicle and to place his hands where the officer could see them. While the facts of D.N. are certainly close to these, I think they are, nonetheless, decisively distinguishable. This is because the “hand-order” was not only de minimis but was incidental to, and an integral part of, the defendant’s response to the completely appropriate requirement that he get out of the car. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

In this case, however, the officer avowedly ordered Herron to “assume the position,” as it were, by placing his hands on the car for the separate and specific purpose of conducting a pat-down for weapons. As the Court says, however, in the absence of a founded suspicion of criminal activity or prior indication that the defendant was armed, the officer had no constitutional authority to do so. See also Davis v. State, 67 So. 3d 1125 (Fla. 5th DCA 2011).


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Citator

Cited By

  • Cole v. State, 190 So. 3d 185 (Fla. 3d DCA 2016)
    …ming traffic lanes and parked in a swale facing the wrong direction. Finally, Cole had a pen clenched tightly in one of his hands when the- officer approached and initiated contact with him. The case at hand is distinguishable from State v. Herron, 68 So. 3d 330 (Fla. 3d DCA 2011) on which Cole relies in his brief. In Herron, the State argued: the pat-down was lawful because Herron appeared “excruciatingly] nervous, fidgety,” could not produce a driver’s license, proof of insurance, or car registration, an…
  • King v. State (9th Cir. Ct. App. Div. 2015)
    …ask a driver to exit his or her vehicle during a lawful traffic stop, even in the absence of evidence that the driver is engaged in any illegal activity. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); State v. Herron, 68 So. 3d 330, 331 (Fla. 3d DCA 2011); State v. Olave, 948 So. 2d 995 (Fla. 4th DCA 2007). Thus, while engaged in the process of issuing the ticket, the UCF officer could lawfully ask Appellant both to roll down her window and to exit her car. He was not obligat…
  • Marquese D. Goodman v. State (Fla. 2d DCA 2019)

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