On May 23, 2024, the Supreme Court of Florida decided the State v. Creller[i], in which the court examined whether a K9 officer that arrives midway through a traffic stop to conduct a free-air sniff of the vehicle can order the driver out of the vehicle.  The relevant facts of Creller are as follows:

After a final warning, Creller, now argumentative and continuing to refuse to come out of the vehicle, was forcefully removed. At the suppression hearing, the trial court found the State’s evidence credible, which established the following: on the date in question, Officer Diaz, a plain-clothes, undercover officer with the Tampa Police Department’s Tactical Narcotics Team (TNT), was surveilling an area known for illegal narcotics activity. While doing so, he observed Creller commit a traffic infraction, so he followed Creller’s truck for several blocks. He didn’t stop Creller’s vehicle himself; instead, he radioed for a marked car with sirens and lights to initiate the stop.

After the marked car stopped Creller’s truck, Officer Diaz and the uniformed officer, Sergeant Covais, approached Creller at his window to speak with him. Fairly quickly into their encounter, Officer Diaz asked Creller if he could search the vehicle. Creller said no, at which point Officer Diaz called for a K-9 unit.

Officer Diaz also called for another backup officer to write the traffic citation because he did not have the citation software on his computer. TNT member Officer Norman responded to the call and quickly arrived on the scene. Officer Norman was tasked with preparing Creller’s traffic citation.

Meanwhile, TNT member K-9 Officer Simmonds responded to Officer Diaz’s call and arrived on scene several minutes later. After identifying himself, Officer Simmonds asked Creller if he had anything illegal in his possession. Creller said no. He then asked Creller for permission to search the vehicle and Creller, again, said no. At that point, he told Creller, “I need you to exit the vehicle for my safety. You’re going to stand on the side of the sidewalk while I get my dog to do a narcotic sweep . . . .” Officer Simmonds explained that this was necessary because Creller was in control of the vehicle, and Officer Simmonds did not want Creller to use his vehicle to hit him or his dog.

Creller refused. So Officer Simmonds warned him that continued refusal could result in his arrest for obstruction. Creller continued to refuse, even after Officer Simmonds explained that exiting the vehicle was for officer safety.

Officer Norman, who was still in the process of preparing the citation, observed the struggle at Creller’s door and left his computer to assist the other officers. Creller was subsequently charged with resisting without violence and possession of methamphetamine, the latter of which was discovered during a search of his person when he was removed from his car.[ii]

Creller filed a motion to suppress and argued that the officer violated the Fourth Amendment when he had him exit the vehicle for a purpose unrelated to the reason for the traffic stop.  The trial court disagreed and denied the motion.  Creller was convicted.  Creller appealed the denial of the motion to suppress to the Second District Court of Appeals.  They reversed the decision of the trial court and held that the officer detoured from the original reason for the stop to conduct a drug investigation.  This decision was in contradiction to a similar case in Florida’s Fifth District Court of Appeals.  As such the Supreme Court of Florida agreed to hear the case.

The issue on appeal was whether a whether a K9 officer that arrives midway through a traffic stop to conduct a free-air sniff of the vehicle violates the Fourth Amendment if he orders the driver out of the vehicle.  Creller argued that this is a detour from the original purpose of the stop to conduct a drug investigation and thus it violates the Fourth Amendment.

The Supreme Court of Florida examined the issue by first examining relevant United States Supreme Court precedent.

The court first examined Pennsylvania v. Mimms[iii] and stated

In Mimms, the United States Supreme Court held that an exit command given by an officer during a lawful traffic stop is not unusually harmful to an individual’s privacy; it is, instead, a “mere inconvenience” because the driver is lawfully detained whether inside the car or out. 434 U.S. at 109-11. . . The Supreme Court explained that “we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile,” including the risk of being assaulted or shot, as well as the “hazard of accidental injury from passing traffic.” Id. at 110-11. On the other hand, any intrusion into the driver’s privacy is de minimis and a “mere inconvenience” given that the driver is already lawfully detained whether inside the car or out. Id. at 111. Wilson later established that Mimms‘ holding was a “bright line” rule. 519 U.S. at 413 n.1.[iv]

Thus, the United States Supreme Court, in Mimms and Wilson held that an officer may order occupants out of a vehicle for officer safety because the person is detained whether inside or outside of the vehicle, and it is a mere inconvenience.

The Supreme Court of Florida also examined Illinois v. Caballes[v] in which the Supreme Court held

In Caballes, the Supreme Court held that a dog sniff sweep could be conducted during a lawful traffic stop without offending the Fourth Amendment. 543 U.S. at 410. In so holding, the Supreme Court rejected reasoning that a sweep turns a stop into a narcotics investigation that must be independently supported by probable cause. Id. at 408.  The Supreme Court explained that a dog sniff sweep’s potential to sniff out drugs in the vehicle is not even a search under the Fourth Amendment because it affects no constitutionally protected interest in the driver’s privacy. Id. at 408-10.[vi]

Thus, a K9 may conduct a free-air sniff of the exterior of a vehicle during a lawful traffic stop without violating the Fourth Amendment.

In contrast, in Rodriguez v. United States[vii] the Supreme Court held that

“[A] police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” 575 U.S. at 350.[viii]

In Rodriguez, a K9 officer conducted a free-air sniff of a vehicle after a traffic citation was issued and the matters related to the reason for the stop were complete.  This is different than Cabelles, where the K9 sniff was conducted during the stop, which is still permissible.

Thus, if a K9 sniff is conducted after the reason for the traffic stop is completed, the additional detention time for the sniff will violate the Fourth Amendment unless the officer has reasonable suspicion that drugs may be in the vehicle.

The Supreme Court of Florida then noted that, based on the facts of Creller’s case, the rule from Rodriguez does not apply because the K9 sniff in Creller occurred during the traffic stop, and the sniff in Rodriguez occurred after the stop had ended.  Therefore, Creller’s stop did not involve a prolonged detention.

The Supreme Court of Florida thus determined that the rule from Mimms applied to Creller’s case.  Specifically, the Court stated

Mimms does apply, and it permits a K-9 officer attempting a sweep during a lawful traffic stop to issue an exit command for officer safety. The exit command still only causes a de minimis intrusion to the driver during a stop, while the K-9 officer’s safety far outweighs the driver’s interest in his location during a lawful traffic stop: in his car or out.[ix]

Therefore, the Supreme Court of Florida reversed the decision of the Court of Appeals in Creller and held that

[B]inding 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.[x]

Practice Pointer:

  • It is important to note that the regular business of the traffic stop (the writing of the citation) continued during the K9 sniff. This is important and the correct way to conduct the K9 sniff during a traffic stop to avoid the argument that the sniff extended the length of the stop beyond the time reasonably needed to complete the original purpose of the stop.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. SC2022-0524 (May 23, 2024)

[ii] Id. at 3-5

[iii] 434 U.S. 106 (1977).

[iv] Creller at 9-10 (emphasis added)

[v] 543 U.S. 405 (2005)

[vi] Creller at 10-11 (emphasis added)

[vii] 575 U.S. 348 (2015)

[viii] Creller at 11 (emphasis added)

[ix] Id. at 14-15 (emphasis added)

[x] Id. at 16 (emphasis added)