IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 19, 2010 Session

STATE OF TENNESSEE v. WAYNE LAMAR DONALDSON, JR.

Direct Appeal from the Criminal Court for Davidson County

No. 2009-C-2849 Cheryl Blackburn, Judge

No. M2010-00690-CCA-R3-CD - Filed September 15, 2011

In an indictment returned by the Davidson County Grand Jury, Defendant Wayne Lamar

Donaldson, Jr., was charged with possession of, with intent to sell or deliver, twenty-six

grams or more of a substance containing cocaine within a drug-free school zone. The drugs

were seized after a traffic violation stop of Defendant by an officer of the Metropolitan

Davidson County Police Department. Defendant filed a motion to suppress all evidence

seized during the stop. Following an evidentiary hearing, the trial court entered an order

which granted the motion, and subsequently entered an order dismissing the indictment based

upon the State’s acknowledgment that it could not proceed to trial without the evidence. The

State has appealed. Based upon the finding of facts made by the trial court and the

application of the law to those facts, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which D. KELLY THOMAS,

JR., J., joined. DAVID H. WELLES, SP.J., not participating.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant

District Attorney General, for the appellant, the State of Tennessee.

James Bryan Lewis, Nashville, Tennessee, for the appellee, Wayne Lamar Donaldson, Jr.
OPINION

Factual Background and Trial Court’s Ruling

Officer Joshua Baker testified that he was on routine patrol on Gallatin Road shortly

after midnight on the night of March 20, 2009, when he observed Defendant’s vehicle go

past the white line on Gallatin Road at the intersection with Old Hickory Boulevard. The

traffic light was red for the Defendant’s vehicle, which was in the “right turn only” lane.

Defendant turned right onto Old Hickory Boulevard without giving a turn signal. Officer

Baker was directly behind Defendant on Gallatin Road when Defendant turned onto Old

Hickory Boulevard. Based upon Officer Baker’s conclusion that Defendant had violated

traffic ordinances of Metropolitan Davidson County, he turned on his blue lights after

following Defendant on to Old Hickory Boulevard. Defendant promptly pulled into a WalMart parking lot and stopped.

Defendant was the only person in his vehicle, and he remained seated in the driver’s

seat. Officer Baker approached Defendant’s vehicle and engaged in conversation with

Defendant while waiting to receive Defendant’s driver’s license and vehicle registration.

Once receiving those items, Officer Baker returned to his patrol car and did a records check,

obtained a criminal history of Defendant, and wrote up citations for Defendant for failure to

properly stop prior to a turn and failure to use a turn signal. Defendant remained inside his

own vehicle. Officer Baker testified that he learned from the criminal history that Defendant

“had some DUI’s, and I think he [Defendant] had some [drug possession] with intent

charges.” However, there were no active warrants for the arrest of Defendant.

Officer Baker completed his work inside the patrol car and returned to Defendant’s

vehicle with the citations and Defendant’s driver’s license (and though not mentioned,

presumably the vehicle registration). He promptly asked Defendant to get out of his vehicle

because,

I wanted to get a feel for him [Defendant]. It’s common that I ask people to

get out of their vehicles to see their demeanor, see how they’re acting. I

wanted to see if maybe he had been drinking to get a perspective of him.

Officer Baker added that he was also going to give the citations to Defendant. After

Defendant stepped outside of his vehicle, Officer Baker looked down to the driver’s side

floorboard and saw “a clear plastic bag with a white powder substance, which is commonly

powder cocaine.” This substance was in fact the cocaine which led to Defendant’s

indictment.

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During cross-examination, Officer Baker admitted that prior to having Defendant get

out of his vehicle, he did not detect an odor of alcohol on Defendant’s breath, and in fact had

no reason at all to believe that Defendant had been driving impaired. Officer Baker had no

suspicions that Defendant had any weapons or illegal drugs prior to Defendant exiting his

vehicle. Officer Baker agreed that he was back at his patrol car for approximately five

minutes before returning to Defendant’s vehicle. Officer Baker, when cross-examined about

the sequence of events surrounding when he was going to give Defendant the citations,

testified, “[w]hen I went back up to the vehicle to ask him [Defendant] to step out, part of

that was to speak with him and get him to sign the ticket.” Officer Baker, upon further

specific cross-examination as to why he required Defendant to get out of the vehicle despite

having no suspicions of Defendant being under the influence of intoxicants, of being armed,

or of possessing illegal drugs, testified,

A. It’s common practice to have people step out of the vehicle to sign their

citations.

Q. Okay.

A. It’s at least my common practice as well as I also get - - I just - - I

observe people, I ask them to step out, I talk to them. I normally have

conversations with them out of the vehicle.

* * *

Q. But you stated you had him step out of the vehicle to observe him

further; is that correct?

A. True.

Q. Why would you want to observe him further when you had no suspicion

that he was armed, dangerous, or had any drugs on him? Why would

you not just simply hand him the ticket inside the vehicle?

[“][Defendant], sign it and you’re on your way.[”] Why would you not

do that?

A. Like I said, I normally have people step out of the vehicle. I judge their

demeanor, I see how they’re acting.

Q. Why would you need to judge his demeanor at this point if you had saw

nothing out of the ordinary?

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A. Just it was part of him getting out of - - part of him signing the citation

as well.

Neither counsel for the State nor counsel for Defendant had any further questions of

Officer Baker. In response to questions from the trial court, Officer Baker testified that he

had returned to Defendant his driver’s license when he stepped out of his vehicle. The

officer also testified that he was in the process of handing the citations to Defendant when

he saw the cocaine on the floorboard after Defendant stepped out of the vehicle. There was

no further testimony at the hearing.

The trial court took the matter under advisement and subsequently filed an order

granting the motion to suppress the cocaine as evidence. Defendant’s motion to suppress

challenged the initial stop as well as his assertion that the detention was unconstitutionally

extended by having Defendant exit his vehicle. In this appeal by the State, Defendant does

not challenge the trial court’s determination that the initial stop was constitutionally based

upon reasonable grounds that Defendant had violated traffic ordinances.

In its order, the trial court concluded that while the initial traffic stop was valid, there

was no basis for Officer Baker to have Defendant exit the vehicle or for Officer Baker to

perform a search of the vehicle. Addressing one of the legal arguments raised by Defendant,

the trial court recognized that the duration of a stop must be “temporary and last no longer

than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500,

103 S.Ct. 1319, 1325 (1983).

The trial court made the following factual findings. After writing the citations for the

traffic offenses, Officer Baker returned to Defendant’s vehicle and requested Defendant to

step outside of the vehicle so that Officer Baker “could observe Defendant’s demeanor and

see if [Defendant] had been drinking.” When Officer Baker initially spoke with Defendant

he did not detect alcohol on Defendant’s breath and had seen nothing to cause him to believe

Defendant was impaired. Officer Baker had completed writing the traffic citations while

inside his patrol car. Officer Baker gave an additional reason when asked why he had

Defendant step out of his vehicle: he wanted to speak with Defendant. Officer Baker’s

practice was to have drivers step outside of the vehicle to sign a citation, allowing Officer

Baker to observe the driver and his demeanor outside of the vehicle. Officer Baker did not

observe the cocaine until Defendant stepped out of the vehicle. Officer Baker had returned

the driver’s license to Defendant and was in the process of handing the citations to Defendant

when he observed the cocaine on the floorboard.

In its legal analysis, the trial court correctly concluded that the cocaine was in plain

view after Defendant was required to exit the vehicle. The issue, as correctly stated by the

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trial court, is whether Officer Baker had a basis to have Defendantstep outside of his vehicle.

While stating that “[a] police officer may, as a matter of course, ask a driver to exit his or her

vehicle as part of a traffic stop,” relying upon Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct.

330, 54 L.Ed.2d 331 (1977), the trial court, as noted above, qualified reliance upon Mimms

by the legal principle that traffic stop detentions may not last longer than is necessary for the

purpose of the stop, relying upon Florida v. Royer, 460 U.S. 491 (1983).

The trial court concluded its findings of fact and conclusions of law in the order

granting the motion to suppress by stating as follows:

Here, Officer Baker testified that he approached Defendant’s vehicle to give

him the traffic citation and return Defendant’s driver’s license. Thus, for all

intensive [sic] purposes, the traffic stop had concluded. Officer Baker was

unable to articulate any reason as to why further observation of Defendant

was necessary in this case. The request for Defendant to exit the vehicle was

not reasonably related to the stop. Accordingly, the Court GRANTS

Defendant’s suppression motion. The evidence seized from Defendant’s

vehicle and person is deemed inadmissible. (emphasis added)

After receiving notice of the trial court’s ruling that Defendant had prevailed on the

motion to suppress, the State promptly filed with the trial court clerk a motion to reconsider,

arguing first that it had not been given the opportunity in the trial court to argue its position

on the legal issues presented. Our review of the transcript does not support this assertion by

the State, and it is not raised by the State on appeal. The second ground for reconsideration

was the State’s assertion that the trial court’s ruling was “contrary to established case law.”

The crux of the State’s argument in the trial court in the motion to reconsider, and continuing

on appeal, is that the traffic stop could not be completed until after Defendant had signed the

traffic citations as required by law. See Tenn. Code Ann. § 55-10-207(b) (2008 Replc.)

Furthermore, the State asserted in the trial court and also on appeal to the effect that Mimms

gives a police officer carte blanche authority to require a driver to exit his vehicle at any time

and for any reason before a valid traffic stop is legally concluded. In the motion to

reconsider, the State argued,

Pennsylvania v. Mimms, 434 U.S. 106 (1977), stands for the proposition that

an officer may, as a matter of course, ask that a driver step out of the vehicle

during a traffic stop. This does not require the officer to state, on a case-bycase basis, that he was concerned for his safety. This is essentially a bright

line rule permitting a minimal inconvenience to the driver. The Supreme

Court concluded that the need for officer safety outweighed the benign nature

of this intrusion.

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The trial court entered an order denying the motion to reconsider. In it, the court

reiterated that the justification for the traffic stop had concluded before Defendant stepped

out of the vehicle - the officer had returned Defendant’s driver’s license to him and the

citations had been completed and only required Defendant’s signature. The trial court added

that its ruling would have been different had Officer Baker not yet returned the driver’s

license to Defendant when he asked Defendant to exit the vehicle. The trial court also stated

its finding that “Officer Baker’s request for Defendant to exit the vehicle was not reasonably

related in scope to the circumstances which justified [the] initial stop.”

Analysis

In State v. Brown, 294 S.W.3d 553 (Tenn. 2009), our supreme court has stated the

appropriate standard of review for this case:

On appeal from the denial of a motion to suppress, we defer to the trial court’s

findings of fact unless the evidence in the record preponderates against them.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The “credibility of the

witnesses, the weight and value of the evidence, and [the] resolution of

conflicts in the evidence are matters entrusted to the trial [court] as the trier of

fact.” Id. The prevailing party in the trial court is afforded ‘the strongest

legitimate view of the evidence . . . as well as all reasonable and legitimate

inferences that may be drawn from that evidence.” Id.

Brown, 294 S.W.3d at 561.

Also, in Brown, we find the applicable law we must follow in disposing of the State’s

appeal from the trial court’s grant of Defendant’s motion to suppress:

Both the federal and state constitutions protect against unreasonable searches

and seizures. The Fourth Amendment to the United States Constitution

provides that “[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be

violated.” Article I, section 7 of the Tennessee Constitution similarly

guarantees “[t]hat the people shall be secure in their persons, houses, papers

and possessions, from unreasonable searches and seizures.” “[U]nder both the

federal constitution and our state constitution, a search without a warrant is

presumptively unreasonable, and any evidence obtained pursuant to such a

search is subject to suppression unless the state demonstrates that the search

was conducted under one of the narrowly defined exceptions to the warrant

requirement.” State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005).

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* * *

When the police have probable cause to believe that a traffic violation has

occurred, the temporary detention of an individual during the stop of the

vehicle is considered constitutionally reasonable, irrespective of the subjective

motivations of the officer making the stop. Shren v. United States, 517 U.S.

806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Vineyard, 958

S.W.2d 730, 734 (Tenn. 1997). The proper inquiry is whether, during the

detention, the officer diligently pursued a means of investigation that was

likely to confirm or dispel suspicion quickly. State v. Simpson, 968 S.W.2d

776, 783 (Tenn. 1998). A reasonable traffic stop can become unreasonable

“‘if the time, manner or scope of the investigation exceeds the proper

parameters.’” State v. Troxell, 78 S.W.3d 866, 871 (Tenn. 2002) (quoting

United States v. Childs, 256 F.3d 559, 564 (7 Cir. 2001)).

th

Brown, 294 S.W.3d at 561-62.

As noted above, it appears the State has continued to maintain, as it did at the trial

court level, that Mimms for all practical purposes grants law enforcement officers carte

blanche authority to remove a person from his or her vehicle at any time, and for any reason,

prior to the conclusion of a traffic stop; further the State insists that a valid traffic stop can

never end, whenever issuance of a traffic citation is authorized, until such time as the driver

has signed the traffic citation. In essence, the State asserts that a request for a driver to get

out of the vehicle, referred to as a “Mimms request,” is virtually unassailable as long as the

officer has withheld the driver’s ability to finish the tenure of the traffic stop.

We deem it necessary to quote verbatim from the State’s brief the passages which

support our understanding of the State’s argument:

It is well-settled that a police officer may ask a driver to get out of his vehicle

as a legitimate part of any traffic stop and that a traffic stop is not concluded

until a citation is issued. (emphasis added) State’s brief, p. 9

Our Supreme Court has also recognized that no constitutional violations

occur when a police officer asks a driver to get out of his car during a traffic

stop . . . . And this Court [the Court of Criminal Appeals] has followed suit.

(emphasis added) (citations omitted) State’s brief, p. 10.

. . . it was constitutionally permissible for Officer Baker to ask the defendant

to get out of his car. At the time of the request, the traffic stop was still in

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progress because the defendant had not signed the citation and Officer

Baker had not issued it. (emphasis added) State’s brief, p. 11.

In [suppressing the evidence] the trial court made several errors. First, the

court defined the issue as “whether the officer had a basis to request Defendant

to step out of the vehicle” or, alternatively, “whether the conduct of the police

officer was reasonable considering the totality of the circumstances.” [record

citation omitted]. However, other than the fact of [sic] that a traffic stop

was in progress, Officer Baker did not need a reason to ask the defendant

to step out of his car. As previously demonstrated, the United States Supreme

Court, ourstate Supreme Court, and [the Court of Criminal Appeals] have held

that a police officer may ask a driver to step from his car as a legitimate part

of any traffic stop and doing so does not give rise to any constitutional

concerns. (emphasis added) State’s brief, p. 11-12.

Consequently, the only basis a police officer needs to make [a Mimms] request

is that the [Mimms] request [to get out of the vehicle] be part of a valid traffic

stop. (emphasis added) State’s brief, p. 12.

Finally, the [Mimms] request does not unreasonably expand the scope of the

stop. Any additional investigation occasioned by the request is incidental to

the request, the objective reasonablness of which is beyond question.

(emphasis added) State’s brief, pp. 13-14.

In addition to arguing the broad permissibility of, and authority for, allowing a Mimms

request, the State, as indicated above, asserts that the trial court erroneously framed the issue

and erroneously concluded that the traffic stop ended when Officer Baker returned the

driver’s license to Defendant. The State argues that case law supports its assertion that a

traffic stop ceases to be a seizure only after the officer issues “a traffic citation or warning

and returns a driver’s license and registration.” State v. McCrary, 45 S.W.3d 36, 42 (Tenn.

Crim. App. 2000). However, the holding in that case was not a list of the requirements

necessary for a traffic stop to conclude. Instead, the issue in McCrary, and in the case it

relied upon, State v. Ashworth, 3 S.W.3d 25, 29-30 (Tenn. Crim. App. 1999), was whether

a valid stop had ended such that the continued encounter between the law enforcement

officer and the driver transformed to a consensual encounter and allowed what otherwise

might be improper comments, i.e., requests for consent to search, etc., to be constitutionally

proper. “When a traffic stop ceases to be a detention and the driver voluntarily consents to

additional questioning, no further seizure occurs.” Ashworth, 3 S.W.3d at 30.

Consequently, we do not agree with the State that McCrary and Ashworth hold that the

legitimacy of a traffic stop for United States and Tennessee Constitutional purposes in all

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cases never stops until: the driver’s license and the vehicle’s registration have been returned

to the driver and the traffic citation (if applicable) has been signed by the driver to complete

the process of issuance of the citation.

We will now address the cases relied upon by the State to support its argument that

the Mimms request in this case did not violate Defendant’s constitutional rights. The analysis

will begin with Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977). In Mimms, the

defendant was pulled over by two Philadelphia police officers because the vehicle he was

driving had an expired license plate. One of the officers asked the defendant at the beginning

of the “stop” to step out of the car and produce his “owner’s card” and his driver’s license.

When the defendant complied, the officer noticed a bulge under the defendant’ssportsjacket;

the officer frisked the defendant because he feared the bulge might be a weapon. This

resulted in the discovery of a .38 caliber revolver in the defendant’s waistband.

As a result of his arrest at the scene for carrying a concealed deadly weapon and for

unlawfully carrying a firearm without a license, the defendant was ultimately indicted for the

same offenses. He filed a motion to suppress the revolver from evidence, which was denied.

Following a trial, he was convicted of both charges. The Supreme Court of Pennsylvania

reversed the conviction, holding that the revolver should have been suppressed because it

was seized in violation of the guarantees of the Fourth and Fourteenth Amendments to the

United States Constitution. According to the United States Supreme Court’s opinion, the

high court in Pennsylvania concluded the initial stop of the defendant’s car was proper, and

the frisk for a weapon was proper once a bulge was detected when the defendant was outside

the vehicle. However, the Pennsylvania Court felt that the search was still “constitutionally

infirm because the officer’s order to [the defendant] to get out of the car was an

impermissible ‘seizure.’” Mimms, 434 U.S. at 108, 98 S.Ct. at 332. The basis for the

Pennsylvania high court’s ruling was that “the officer could not point to ‘objective

observable facts to support a suspicion that criminal activity was afoot or that the occupants

of the vehicle posed a threat to police safety.’” Id. (citing Mimms, 471 Pa. 546, 552, 370

A.2d 1157, 1160 (1977)).

The United States Supreme Court granted the petition for certiorari brought by the

Commonwealth of Pennsylvania, and in a per curiam opinion the majority reversed the

judgment of the Pennsylvania Supreme Court. As mentioned above, the Mimms court noted

that the police officer approached the defendant’s vehicle first thing and asked the defendant

to step from the vehicle at the same time as he was asking the defendant to produce his

driver’s license and “owner’s card.” The Mimms court stated that “[i]t was apparently [the

officer’s] practice to order all drivers out of their vehicles as a matter of course whenever

they had been stopped for a traffic violation.” Mimms, 434 U.S. at 110. The justification

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given by the State’s attorney for this policy was because the “precautionary measure”

afforded “a degree of protection to the officer.” Id.

Agreeing with the State’s argument, the United States Supreme Court stated,

We think it too plain for argument that the State’s proffered justification –

the safety of the officer – is both legitimate and weighty.

* * *

The police have already lawfully decided that the driver shall be briefly

detained; the only question is whether he shall spend that period sitting in

the driver’s seat of his car or standing alongside it.

* * *

What is at most a mere inconvenience cannot prevail when balanced against

legitimate concerns for the officer’s safety.

Id. at 110-11 (emphasis added).

What is clear from the facts in Mimms is that the officer had the defendant get out of

his car immediately as the officer was requiring the defendant to hand over his driver’s

license and his owner’s card, and was doing this for the officer’s safety and protection, and

for no other apparent reason. Furthermore, it is clear that the Supreme Court in Mimms

reached its holding on the basis of balancing the act of ordering the driver out of the car

(under the stated circumstances) against legitimate concerns for officer safety. In footnote

6 of the Mimms decision the Court made this comment:

Contrary to the suggestion in the dissent of our Brother STEVENS [sic], post,

[98 S.Ct.] at [339], we do not hold today that “whenever an officer has an

occasion to speak with the driver of a vehicle, he may also order the driver out

of the car.” We hold only that once a motor vehicle has been lawfully detained

for a traffic violation, the police officers may order the driver to get out of the

vehicle without violating the Fourth Amendment’s proscription of

unreasonable searches and seizures.

Mimms, 434 U.S. at 111, n. 6.

The first sentence of footnote 6 in Mimms supports our conclusion that the Supreme

Court did not intend for officers to have carte blanche authority to always order drivers out

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of their vehicles under any and all circumstances. In light of the facts of Mimms, and the

Supreme Court’s corresponding emphasis upon officer safety in the text of the opinion, we

conclude that the second sentence in footnote 6 explains that an officer’s order to a driver in

a traffic stop, to exit his or her vehicle, is not always a violation of the Fourth Amendment’s

protection against unreasonable searches and seizures.

The State in the case sub judice argues that the trial court erred by relying upon the

United States Supreme Court’s decision in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319

(1983), an opinion filed about five years after Mimms. The State acknowledges that Royer

holds that traffic stops must be “temporary and last no longer than necessary to effectuate the

purpose of the stop.” Royer, 460 U.S. at 500, 103 S.Ct. at 1325. The State asserts that rather

than being “countervailing rules of law” as construed by the trial court, “a Mimms request

falls squarely within the parameters established by Royer.”

In State v. Berrios, 235 S.W.3d 99 (Tenn. 2007), (also relied upon by the State in its

brief) our state supreme court acknowledged Mimms by stating it held “that an officer may,

as a matter of course, ask that a driver step out of the vehicle during a traffic stop.” Id. at

106. However, in Berrios, the officer went beyond the extent necessary to effectuate the

purposes of the stop, and our supreme court reiterated its earlier holding in State v. Cox, 171

S.W.3d 174 (Tenn. 2005) and quoted from Cox’s adoption of the rationale in Royer:

The duration of [a traffic] stop, however, must be “temporary and last no

longer than necessary to effectuate the purpose of the stop.” “The proper

inquiry is whether during the detention the police diligently pursued a means

of investigation that was likely to confirm or dispel their suspicions quickly.”

A traffic stop may be deemed “unreasonable,” if the “‘time, manner or scope

of the investigation exceeds the proper parameters.’”

Id. at 179-80 (citations omitted).

Berrios, 235 S.W.3d at 106-07.

Accordingly, we disagree with the implication in the State’s brief that a Mimms

request will alwaysfall within the Royer dictates and never violate the parameters established

by Royer. In another case relied on by the State, State v. Hanning, 296 S.W.3d 44 (Tenn.

2009), the issue was whether the police officer had sufficient information based only upon

an anonymous tip of a recklessly driven semi-truck on the interstate, plus corroborating

information he observed, in order to initiate an investigatory stop of a semi-truck parked in

the emergency lane of the northbound exit from the interstate. Id. at 46. In that case the

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propriety of the officer ordering the driver of the semi-truck to exit the vehicle immediately

was not an issue.

The Supreme Court stated,

Having justifiably detained [the defendant] based upon reasonable suspicion

of criminal activity, [the officer] approached the door of the truck where he .

. . properly asked [the defendant] to step from the truck. See State v. Berrios,

235 S.W.3d 99, 106 (Tenn. 2007) (citing Pennsylvania v. Mimms, 434 U.S.

106, 109-11, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (holding that once a vehicle

has been lawfully detained, an officer may, as a matter of course, order the

driver to step out of the vehicle.)) Thereafter, [the officer] properly

administered field sobriety tests, establishing probable cause to arrest [the

defendant] for driving under the influence.

Hanning, 296 S.W.3d at 54.

We note that the officer in Hanning immediately ordered the driver from the semitruck upon detaining the truck, with use of the blue lights of his patrol car, which was parked

close to the front of the semi-truck. Id. at 46-47. After asking if the defendant “had been

drinking,” the officer administered various field sobriety tests, which implicitly could only

be administered outside of the vehicle.

In State v. Brown, 294 S.W.3d 553 (Tenn. 2009), our Supreme Court cited with

approval Berrios quoting Mimms for the proposition that an order for a driver to exit a

vehicle can only be described as a “de minimus” intrusion or a “mere inconvenience.”

Brown, 294 S.W.3d at 562. Again, however, in Brown the issue was not the officer’s order

for the driver to step from the vehicle. The issues were whether the detention exceeded the

scope of the traffic stop because the officer immediately began searching the vehicle for

illegal drugs at the beginning of the traffic stop; whether the defendant gave a valid consent

to search the vehicle; and whether the search exceeded the scope of the consent, if valid. Id.

at 557, 562-65. In Brown, the Court held that the time, manner, and scope of the officer’s

investigation did not exceed the parameters of the traffic stop. Id. at 562. The trial court in

the case sub judice reached the opposite conclusion in Defendant’s case.

In State v. Harris, 280 S.W.3d 832 (Tenn. Crim. App. 2008), the defendant was

driving with one passenger when a police officer stopped him for violation of the seat belt

law. The officer approached the defendant and asked him to produce his car registration and

insurance documents, which the defendant replied he did not have in his possession. Thus,

there were three citations for traffic violations which needed to be issued. The officer then

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asked the defendant to go ahead and exit his vehicle “so the officer could ‘issue citations for

seat belt, registration and insurance’” violations. Id., 280 S.W.3d at 837. A pat down search

for weapons yielded no weapons or contraband. While another office who soon arrived on

the scene completed writing out the citations, the first officer walked around the defendant’s

vehicle with a drug sniffing dog. The dog “hit” on the passenger side door. The first officer

then did a more thorough search of the defendant’s person and found a seven-gram rock of

cocaine in the defendant’s crotch area. In summary, the defendant’s issues on appeal were

(1) whether the search and seizure exceeded the scope of the traffic stop; (2) the validity of

the initial stop; and (3) whether the “hit” by the canine on the passenger door justified the

second search of the defendant’s person. Id., 280 S.W.3d at 838. From the opinion, we

glean that the only relevance of removal of the defendant from his vehicle as to any issue on

appeal was whether, in that case, the removal improperly extended the legitimate time and

scope of a traffic stop. Our court summarized the consideration of this factor as follows:

The next event of possible constitutional significance is the officer’s

requesting the defendant to stand outside his car while the officer wrote the

citations for the seatbelt, registration, and financial responsibility violations.

Although this action arguably exacerbated the seizure in progress, we agree

with the trial court that the officer’s habit of having motorists exit their

vehicles during the completion of paperwork was a justifiable safety measure,

especially in view of the benign nature of the intrusion. See Pennsylvania v.

Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331 (1977)

(holding that an officer may, as a matter of course, ask that a driver step out of

the vehicle during a traffic stop); State v. Pulley, 863 S.W.2d 29, 34 (Tenn.

1993) (“‘The reasonableness of a stop turns on the facts and circumstances of

each case [including] . . . the nature and scope of the intrusion’”) (quoting

United States v. Mendenhall, 446 U.S. 544, 561, 100 S.Ct. 1870, 1881, 64

L.Ed.2d 497 (1980) (Powell, J., concurring));

* * *

While focused on his paperwork, an officer is especially vulnerable to the

seclusion and procurement of a weapon by a detainee who is sitting inside a

vehicle.

Harris, 280 S.W.3d at 840.

We note three things from Harris which distinguish it from the case sub judice. First,

the trial court in Harris made a factual finding that the officer’s habit of having a motorist,

as the defendant there, get out of the vehicle during completion of the paperwork was a

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justifiable safety measure. The trial court in the case sub judice did not make such a finding.

Next, the officer had the defendant in Harris exit the vehicle early in the encounter, and

clearly solely for furtherance of the issuance of citations in that case, and finally, the process

of doing the paperwork by the officer in Harris had not even started when he ordered the

defendant out of his car. In the case sub judice, the officer had fully completed his portion

of the paperwork. Concerns of safety from the fact that Officer Baker would be distracted

from Defendant sitting in his car, while Officer Baker was filling out paperwork while

standing next to Defendant’s car, did not exist as in the situation in Harris.

In the case sub judice the trial court heard the testimony of the sole witness who

testified and observed his demeanor. Implicitly, if not also explicitly, the trial court made

credibility determinations that the officer’s explanation for having Defendant get out of the

car for safety reasons at the end of the traffic stop was not credible. The trial court factually

found that the legitimate purpose of the traffic stop had ended before Defendant was ordered

to exit the vehicle for the purpose of the officer to talk to Defendant and further observe

Defendant’s demeanor outside of the vehicle. The trial court concluded that the officer had

no appropriate grounds to extend the seizure of Defendant at the time he was ordered to get

out of his car. We are bound in this case, under the applicable law cited above, by the trial

court’s credibility determinations, and the weight and value placed on the evidence, unless

the evidence preponderates against the trial court’s determination. Brown, 294 S.W.3d at

561. In the case the record does not preponderate against the findings of the trial court. The

State is not entitled to relief in this appeal.

CONCLUSION

After review of the entire record and briefs of the parties, we affirm the judgment of

the trial court.

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THOMAS T. WOODALL, JUDGE

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