[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10670

____________________

MARQUES A. JOHNSON, 

Plaintiff-Appellee,

versus

CHRIS NOCCO,

in his official capacity as Sheriff, Pasco County, Florida,

Defendant,

JAMES DUNN, 

in his individual capacity, 

Defendant-Appellant.

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____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:20-cv-01370-TPB-JSS

____________________

Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

This appeal presents two questions. The first is whether the 

Fourth Amendment precluded a law enforcement officer—who 

had stopped a vehicle for a traffic violation—from asking a passenger in the vehicle to identify himself unless the officer had reason 

to suspect that the passenger had committed, was in the process of 

committing, or was likely to commit a criminal offense. The second question is whether binding precedent1 clearly established, at 

the time relevant here, that an officer could not ask a passenger to 

identify himself absent this reasonable suspicion. The District 

Court answered both questions in the affirmative and accordingly 

denied the officer’s motion to dismiss the passenger’s claim pursuant to the doctrine of qualified immunity.

1 Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (“Our Court looks only 

to binding precedent—cases from the United States Supreme Court, the Eleventh Circuit, and the highest court of the state under which the claim arose—

to determine whether the right in question was clearly established at the time 

of the violation.”).

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The officer appeals the District Court’s decisions.2 Concluding that the District Court erred in denying the officer’s motion to 

dismiss the passenger’s claim, we reverse.

Our discussion proceeds as follows. Part I sets out the passenger’s claim under the Fourth Amendment (and relatedly under 

the Fourteenth Amendment) and the District Court’s reasons for 

denying the officer’s motion to dismiss the claim. Part II reviews 

Supreme Court precedent concerning whether it is reasonable under the Fourth Amendment for an officer, during a traffic stop, to 

ask the vehicles occupants—the driver and passengers alike—to 

exit the vehicle. Part III addresses how that precedent informs the 

answer to the question here—whether an officer may ask a passenger for identification absent a reasonable suspicion that the passenger has committed, is committing, or is likely to commit a criminal 

offense. Part IV addresses whether the officer here lacked arguable 

probable cause to arrest the passenger under Florida Statute

§ 843.02 for refusing to comply with the officer’s demand that he 

identify himself. Part V concludes.

2 We have jurisdiction to entertain this appeal under 28 U.S.C.§ 1291. Mitchell

v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 2817 (1985) (“[A] district court’s 

denial of a claim of qualified immunity, to the extent that it turns on an issue 

of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.”).

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I.

A.

The officer is James Dunn—a Pasco County, Florida Sherriff’s Office deputy. Chris Nocco, the Pasco County Sheriff, is a 

codefendant with Dunn in the case below. The passenger is 

Marques A. Johnson. Johnson’s initial complaint in this case consisted of twelve counts. Johnson’s first amended complaint, the 

complaint at hand, contains ten counts. Count I of the amended 

complaint, which replicates verbatim Count I of the initial complaint, was brought against Dunn in his individual capacity and is 

the only count before us in this appeal.3

Count I seeks damages against Dunn under 42 U.S.C. § 19834

for violating Johnson’s Fourth and Fourteenth Amendment rights 

3 The remaining nine counts of the amended complaint contain the following 

claims: Count II, against Nocco in his official capacity, alleging the constitutional claims asserted against Dunn in Count I; Count III, a common law claim 

against Nocco for negligence in training Dunn and others; Count IV, a common law claim against Nocco for negligence in supervising Dunn and others; 

Count V, a common law claim against Dunn for malicious prosecution; Count 

VI, a common law claim against Dunn for intentional infliction of emotional 

distress; Counts VII and VIII, common law claims against Dunn and Nocco 

respectively for battery; Counts IX and X, common law claims against Dunn 

and Nocco respectively for false imprisonment.

4 Section 1983 (Civil action for deprivation of rights) states in relevant part: 

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects . . . any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or 

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on August 2, 2018, in Pasco County, Florida. Count I alleges that 

Dunn, accompanied by Deputies Christopher Ramos and Mark 

Pini, stopped a motor vehicle towing a motorcycle on a trailer because the trailer’s license tag was obscured.5 This vehicle was 

driven by Johnson’s father (the “driver”). Dunn approached the 

front passenger side of the vehicle and obtained the driver’s driver’s 

license and vehicular registration. Next, he asked Johnson, seated 

in the front passenger seat (another passenger was in the back seat), 

if he “had his ‘ID on him.’” Johnson replied that he was “merely a 

passenger in the vehicle and was not required to identify himself.” 

Dunn responded that “under Florida law he was required to identify himself and that if he did not identify himself, [Dunn] would 

‘pull him out and he would go to jail for resisting.’” A Sheriff’s Office “supervisor informed Deputy Dunn that he should arrest 

[Johnson]” for refusing to identify himself. Dunn accordingly 

placed Johnson “under arrest for resisting without violence” in violation of Florida Statute § 843.02.6

immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . for redress[.] 

42 U.S.C. § 1983.

5 See Fla. Stat. § 316.605(1) (Licensing of vehicles). 

6 Fla. Stat. § 843.02 (Resisting officer without violence to his or her person)

states: “Whoever shall resist, obstruct, or oppose any officer . . . in the lawful 

execution of any legal duty . . . shall be guilty of a misdemeanor of the first 

degree.” 

As noted in the above text, Johnson was arrested on August 2, 2018. 

He moved the County Court for Pasco County to dismiss the § 843.02 charge, 

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Count I is styled “Fourth Amendment Violation – False Arrest” and asserts two causes of action: a claim that Deputy Dunn’s 

demand that Johnson identify himself amounted to an unreasonable seizure in violation of the Fourth Amendment7 and a claim that 

Dunn arrested Johnson without probable cause in violation of the 

Due Process Clause of the Fourteenth Amendment. The Fourth 

Amendment claim is based on Terry v. Ohio, 392 U.S. 1, 

88 S. Ct. 1868 (1968), and its progeny. The due process claim is that 

Dunn lacked probable cause to arrest Johnson for violating 

§ 843.02.

Dunn’s request that Johnson identify himself was allegedly 

unreasonable because at the specific moment Dunn encountered 

Johnson he was, in effect, conducting a Terry stop8 and could not 

demand that Johnson identify himself without “any specific basis 

for believing he [was] involved in criminal activity.” Count I cites 

Brown v. Texas, 443 U.S. 47, 52–53, 99 S. Ct, 2637, 2641 (1979), a 

Terry progeny, in support of the claim. Moreover, Dunn could not 

“arrest [Johnson] for failure to identify himself if the request for 

identification [was] not related to the circumstances justifying the 

and on November 9, 2018, the County Court heard the motion and granted it. 

The State moved the Court for reconsideration, and the Court denied the motion on November 21, 2018. Johnson brought this lawsuit on June 15, 2020.

7 The Fourth Amendment is applicable to the states and local government 

through the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 

367 U.S. 643, 659, 81 S. Ct. 1684, 1694 (1961). 

8 See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).

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stop,” according to the Supreme Court in Hiibel v. Sixth Jud. Dist. 

Ct., 542 U.S. 177, 188, 124 S. Ct. 2451, 2459 (2004). The due process 

claim is that Johnson expressed his refusal to identify himself in 

“mere words.” Dunn therefore lacked probable cause to arrest 

Johnson for resisting an officer without violence in violation of 

§ 843.02.

Dunn moved to dismiss Count I of both the initial and 

amended complaints on the ground that the doctrine of qualified 

immunity immunized him from suit. Dunn’s second motion took 

issue with the cases Count I relies on to support its Fourth Amendment claim, namely Terry, Hiibel, and Brown. Dunn argued that 

those cases did not support Count I’s allegation that he could not 

ask Johnson to identify himself unless he reasonably suspected that 

Johnson had committed, was in the process of committing, or was 

likely to commit a criminal offense. He argued that, if anything, 

those cases supported his position—that Florida law permitted him

to ask Johnson to identify himself. Dunn cited Arizona v. Johnson,

555 U.S. 323, 129 S. Ct. 781 (2009), and Pennsylvania v. Mimms,

434 U.S. 106, 98 S. Ct. 330 (1992), as recognizing, in the interest of 

officer safety, an officer’s need to question the occupants of vehicles stopped for traffic violations. 

B.

The District Court ruled on Dunn’s motion to dismiss 

Count I in two orders: one addressed the sufficiency of Count I of 

Johnson’s initial complaint; the other addressed the sufficiency of 

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Count I of the amended complaint.9 For efficiency, we treat the 

two orders as one.

The District Court held that Dunn was entitled to assert the 

qualified immunity defense because, in conducting the traffic stop, 

he acted within the scope of his discretionary authority as a Sheriff’s deputy.10 To overcome this defense, Johnson had to show

(1) that Count I’s allegations established that Dunn violated his 

Fourth Amendment right not to be asked to identify himself, and 

if so, (2) that right was clearly established at the time of the violation. Exercising its discretion under Pearson v. Callahan, 555 U.S. 

9 The second order, which is very brief, essentially adopted the first order’s 

analysis regarding Count I’s sufficiency.

10 A government official sued under a theory of direct liability, may “seek to 

have the complaint dismissed on qualified immunity grounds prior to discovery, based solely on the allegations in the pleadings.” See Holloman ex. rel. Holloman v. Harland, 370 F.3d 1252, 1263 n.6 (11th Cir. 2004).

To . . . be potentially eligible for . . . judgment due to qualified 

immunity, the official must have been engaged in a “discretionary function” when he performed the acts of which the plaintiff complains. Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982) (holding that 

qualified immunity extends to “government officials performing discretionary functions”). It is the burden of the governmental official to make this showing. Storck v. City of Coral

Springs, 354 F.3d 1307, 1314 (2003) (“Under qualified immunity 

analysis, the public official must first prove that he was acting 

within the scope of his discretionary authority when the allegedly unconstitutional acts took place.” (emphasis added)).

Id. at 1263–64.

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223, 236, 129 S. Ct. 808, 818 (2009), as to which showing it should 

address first, the Court addressed the two showings in order.

The District Court first found that Dunn had probable cause 

to initiate the traffic stop and a “valid basis to briefly detain both 

Plaintiff and his father who was driving the vehicle. See, e.g., Johnson, 555 U.S. at 333 (temporary detention of driver and passengers 

during traffic stop remains reasonable for duration of the stop).” 

Dunn also had “a valid basis to require the driver to provide identification and vehicle registration.” But he did not have “a valid 

basis to also require a passenger, such as Plaintiff, to provide identification, absent a reasonable suspicion that the passenger had 

committed, was committing, or was about to commit a criminal 

offense.” The Court supported that statement by citing Florida 

Statute § 901.151(2)11 and three U.S. Supreme Court decisions. In 

a parenthetical citation to this statute, the District Court said an 

11 Section 901.151(2), Florida’s “Stop and Frisk Law,” states in relevant part:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is 

about to commit a violation of the criminal laws of this state 

or the criminal ordinances of any municipality or county, the 

officer may temporarily detain such person for the purpose of 

ascertaining the identity of the person temporarily detained 

and the circumstances surrounding the person's presence 

abroad which led the officer to believe that the person had 

committed, was committing, or was about to commit a criminal offense.

Fla. Stat. § 901.151(2).

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“officer may detain [a] person for purpose of ascertaining identity 

when [the] officer reasonably believes [the] person has committed, 

is committing, or is about to commit a crime.” The main Supreme 

Court decisions the District Court cited were Hiibel12 and Brown v. 

Texas.13

Referring to § 901.151(2), the District Court acknowledged 

that the “Florida courts had not specifically held that law enforcement officers may require [a] passenger[] to provide identification 

during traffic stops absent a reasonable suspicion that the passenger 

had committed, was committing, or was about to commit a criminal offense.” The District Court concluded that “the ultimate 

source of authority on this issue is the Fourth Amendment as interpreted by the U.S. Supreme Court, not a specific provision of 

Florida law.”14

12This parenthetical followed the Hiibel citation: “an officer may not arrest an 

individual for failing to identify himself if the request for identification is not 

reasonably related to the circumstances justifying the stop.”

13 This parenthetical followed the Brown citation: “law enforcement cannot 

stop and demand identification from individual without a specific basis for believing he is involved in criminal activity.”

The Court cited other decisions in reaching it decision to deny Dunn’s 

motion to dismiss, but Hiibel and Brown were the Court’s principal authorities.

14 The District Court added: “In 1982, the Florida Constitution was amended 

to provide that Florida courts would follow the United States Supreme Court’s 

decisions in addressing search and seizure issues. See Perez v. State, 620 So. 2d 

1256, 1258 (Fla. 1993).” ’ State v. Jacoby, 907 So. 2d 676, 680 (Fla. 2d DCA 2005).”

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The District Court concluded its analysis of Johnson’s 

Fourth Amendment and False Arrest claims:

Plaintiff had a legal right to refuse to provide his identification to Deputy Dunn. As such, Deputy Dunn had 

neither actual probable cause nor arguable probable cause 

to arrest Plaintiff [for violating § 843.02]. The Court 

further finds that based on the Fourth Amendment itself and the case law discussed, the law was clearly established at the time of the arrest. Deputy Dunn is 

not entitled to qualified immunity, and the motion to 

dismiss is denied as to this ground.

(emphasis added). An inference reasonably drawn from the emphasized language is that if Johnson did not have a legal right to 

refuse Dunn’s command that he identify himself, Dunn had at least 

arguable probable cause to arrest him under § 843.02 for refusing 

to do so. Another inference reasonably drawn from the District 

Court’s discussion about § 901.151(2) is that, if Johnson did not 

have the right to refuse Dunn’s command, the statute’s language—

“had committed, was committing, or was about to commit a criminal offense”—would be inoperative here.

II.

A.

Deputy Dunn stopped the Johnson vehicle because he had 

probable cause to believe the driver had committed a traffic violation: its trailer’s license tag was obscured. The stop constituted a 

Fourth Amendment seizure and detention of the vehicle’s 

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occupants—the driver and two passengers—since they were not 

free to exit the vehicle or continue on their journey.15 “[A] passenger is seized, just as the driver is, ‘from the moment [a car stopped 

by the police comes] to a halt on the side of the road.’” Johnson, 

555 U.S. at 332, 129 S. Ct. at 787 (second alteration in original) 

(quoting Brendlin v. California, 551 U.S. 249, 263, 127 S. Ct. 2400, 

2410 (2007)). 

The traffic stop here was analogous to a Terry stop. “[I]n 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.” 

Id. at 327, 129 S. Ct. at 784. Here, it was lawful for Deputy Dunn 

to stop the vehicle and detain its occupants for the violation of a 

Florida Statute regulating the “licensing of vehicles.” Fla. Stat. 

§ 316.605(1).16 Moreover, the occupants would expect the detention to continue, and remain reasonable, for the duration of the 

stop; they would be free to leave when Dunn had no further need 

to control the scene. See Johnson, 555 U.S. at 333, 129 S. Ct. at 788

(“Normally, the stop ends when the police have no further need to 

15 As noted, Dunn was aided by Deputies Ramos and Pini, who were with 

Dunn when he made the stop, and their supervisor.

16 “[A]n officer making a [traffic] stop must have ‘a particularized and objective 

basis for suspecting the person stopped of criminal activity.’ Even minor traffic violations qualify as criminal activity.” United States v. Campbell, 

26 F.4th 860, 880 (11th Cir. 2022) (en banc) (quoting Navarette v. California, 

572 U.S. 393, 396, 134 S. Ct. 1683, 1687 (2014)) (other citations omitted), cert. 

denied, 143 S. Ct. 95, 214 L.Ed.2d 19 (2022).

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control the scene, and inform the driver and passengers they are 

free to leave.” (citing Brendlin, 551 U.S. at 258, 127 S. Ct. at 2407)).

Deputy Dunn’s “mission” was “to address the traffic violation that warranted the stop” and to “attend to related safety concerns.” See Rodriguez v. United States, 575 U.S. 348, 354, 135 S. Ct. 

1609, 1614 (2015). While carrying out his mission, Dunn would 

have been mindful of the safety risk that officers face when conducting traffic stops. The Supreme Court recognized such danger 

in Johnson: 

[T]raffic stops are “especially fraught with danger to 

police officers.” Michigan v. Long, 463 U.S. 1032, 1047, 

103 S. Ct. 3469 (1983). “‘The risk of harm to both the 

police and the occupants [of a stopped vehicle] is minimized . . . if the officers routinely exercise unquestioned command of the situation.’” Maryland v. Wilson, 519 U.S. 408, 414, 117 S. Ct. 882 (1997) (quoting

Michigan v. Summers, 452 U.S. 692, 702–[]03, 101 S. Ct. 

2587 (1981)).

555 U.S. at 330, 129 S. Ct. at 786 (second alteration in original). 

Dunn exercised command of the seizure. He made the “ordinary inquiries incident to [the traffic] stop.” See Rodriguez, 575 

U.S. at 355, 135 S. Ct. at 1615 (alteration in original) (quoting Illinois 

v. Caballes, 543 U.S. 405, 408, 125 S. Ct. 834, 837 (2005)). Dunn asked 

the driver for his driver’s license and vehicle registration, and he 

complied. Dunn could have asked any of the occupants about their 

travel plans and destinations. See Campbell, 26 F.4th at 885 (en banc) 

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(collecting cases) (“Generally speaking, questions about travel 

plans are ordinary inquiries incident to a traffic stop.”). 

Deputy Dunn’s mission focused on the traffic violation that 

warranted the stop and related safety concerns. Even if Dunn’s exchanges with the driver and Johnson were focused exclusively on 

the reason for the stop and safety, any additional exchange would 

not be unreasonable unless it measurably extended the duration of 

the stop. Johnson, 555 U.S. at 333, 129 S. Ct. at 788 (citation omitted) 

(“An officer’s inquiries into matters unrelated to the justification for 

the traffic stop . . . do not convert the encounter into something 

other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”).17

B.

In carrying out his mission, could Deputy Dunn ask the 

driver to step out of the vehicle?18 

In Mimms, the Supreme Court considered whether requesting a driver to get out of his vehicle was reasonable under the 

Fourth Amendment. 434 U.S. at 108–13, 98 S. Ct. at 332–35. Given

that “the central inquiry under the Fourth Amendment [is] the reasonableness in all the circumstances of the [officer’s] invasion of 

17 Count I of the amended complaint does not allege that Dunn’s conduct 

measurably extended the duration of the stop.

18 Deputy Pini ordered the vehicle’s occupants to exit the vehicle so he and his 

dog could conduct a narcotics sniff. The question I pose in the above text is 

whether, before the narcotics sniff, Dunn could have ordered the driver to exit 

the vehicle while Dunn engaged in the inquiries called for by the stop.

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[the driver’s] personal security[,]” Terry, 392 U.S. at 19, 88 S. Ct. at 

1878–79, the Court in Mimms held that the “[r]easonableness [of 

the officer’s request] depends ‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’” 434 U.S. at 109, 98 S. Ct. at 332 

(quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 

2574, 2579 (1975)). 

In distinguishing its inquiry from that in Terry, the Mimms

Court explained:

[T]here is no question about the propriety of the initial restrictions on [Mimms’s] freedom of movement. 

[Mimms] was driving an automobile with expired license tags in violation of the Pennsylvania Motor Vehicle Code. . . . [The Court] need presently deal only 

with the narrow question of whether the order to get 

out of the car, issued after the driver was lawfully detained, was reasonable and thus permissible under the 

Fourth Amendment. This inquiry must therefore focus not on the intrusion resulting from the request to 

stop the vehicle . . . but on the incremental intrusion 

resulting from the request to get out of the car once 

the vehicle was lawfully stopped.

Id. (footnote omitted).

In striking the balance described in Brignoni-Ponce, the 

Mimms Court “weigh[ed] the intrusion into [Mimms’s] personal liberty occasioned not by the initial stop of the vehicle, which was 

admittedly justified [as part of the officer’s mission], but by the order to get out of the car.” Id. at 111, 98 S. Ct. at 333. The Court 

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concluded that the additional intrusion was “de minimis” and accordingly held that the officer’s order was reasonable. Id. at 111, 98

S. Ct. 333. “[I]t hardly rises to the level of a ‘petty indignity.’” Id. 

(quoting Terry, 392 U.S. at 17, 88 S. Ct. at 1877).

The answer to the question posed above is that Deputy 

Dunn could have asked the driver to step out of his vehicle—not as 

part of Dunn’s mission, but as an additional, incremental, and reasonable intrusion.

C.

In carrying out his mission, could Deputy Dunn have asked 

a passenger—here, Johnson—to step out of the vehicle? Specifically, would the Mimms rationale and holding apply to a passenger?

In Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997), the

Supreme Court decided that it does. Ordering a passenger to exit

the vehicle did not appear to be part of the officer’s mission, so, as

before, the Wilson Court struck the same balance described in

Brignoni-Ponce. In doing so, it recalled how it weighed the public’s

interest and the driver’s personal liberty in Mimms:

On the public interest side of the balance, we noted 

that the State “freely concede[d]” that there had been 

nothing unusual or suspicious to justify ordering 

Mimms out of the car, but that it was the officer’s 

“practice to order all drivers [stopped in traffic stops] 

out of their vehicles as a matter of course” as a “precautionary measure” to protect the officer’s safety. 

We thought it “too plain for argument” that this 

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justification—officer safety—was “both legitimate 

and weighty.”[19] 

On the other side of the balance, we considered 

the intrusion into the driver’s liberty occasioned by 

the officer’s ordering him out of the car. Noting that 

the driver’s car was already validly stopped for a traffic 

infraction, we deemed the additional intrusion of 

asking him to step outside his car “de minimis.” Accordingly, we concluded 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 seizures.”[20] 

Id. at 412, 117 S. Ct. at 885 (first and second alterations in original) 

(citations omitted).

The Wilson Court next moved to the issue then before it: 

whether Mimms’s reasonableness holding applied to passengers as 

19 After making that statement, the Mimms Court added this regarding the public interest: “Certainly it would be unreasonable to require that police officers 

take unnecessary risks in the performance of their duties.” 434 U.S. at 110, 98 

S. Ct. at 333 (quotation marks omitted) (quoting Terry, 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.” Id.

20 The Mimms Court added that requiring the driver to exit his vehicle was 

“not a ‘serious intrusion upon the sanctity of the person[.]’” 434 U.S. at 111, 

98 S. Ct. at 333 (quoting Terry, 392 U.S. at 17, 88 S. Ct. at 1877). According to 

the Mimms Court, “[w]hat is at most a mere inconvenience cannot prevail 

when balanced against legitimate concerns for the officer’s safety.” Id.

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well as drivers. The Court struck a balance between the public’s 

and the passenger’s respective interests:

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 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 

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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, 137 S. Ct. at 885–86 (footnotes omitted). On balance, 

the Wilson Court concluded that the public’s interest in officer 

safety had greater weight than the passenger’s personal liberty. As 

the Court summarized:

[D]anger 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.

Id. at 414–15, 137 S. Ct. at 886.

So, in the case at hand, Deputy Dunn could ask Johnson to 

step out of the vehicle during the vehicular stop.

III.

The District Court’s answer to the first question this appeal 

presents was that the Fourth Amendment precluded Deputy Dunn 

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from requesting Johnson to identify himself because Dunn had no 

reason to suspect that Johnson had, was, or was likely to commit a 

criminal offense. Stated another way, Johnson had a Fourth 

Amendment right to refuse Dunn’s request.

Paraphrasing what the Supreme Court said in Brendlin, Johnson was seized just as the driver was from the moment the vehicle 

in which they were riding came to a halt on the side of the road. 

Under Florida law, all the vehicle’s occupants would be asked to 

identify themselves. The driver would be asked to produce his license and vehicle registration as part of Dunn’s mission to investigate the traffic violation. Assume for the sake of discussion that 

asking Johnson to identify himself was not part of Dunn’s mission 

to investigate the violation; rather it was an additional intrusion 

into Johnson’s liberty.

Mimms and Wilson instruct on how to determine whether 

the additional intrusion amounted to an unreasonable search under 

the Fourth Amendment. We engage in Brignoni-Ponce balancing. 

In the setting here, we weigh the additional intrusion into the passenger’s liberty against the public’s interest in protecting officer 

safety. In Florida, a passenger, like the vehicle’s driver, expects to 

be asked for identification. It is a precautionary measure to protect 

officer safety. In Mimms, it was the officer’s practice, not a state law, 

to order all drivers stopped for traffic violations to exit the vehicle 

as a “‘precautionary measure’ to protect the officer’s safety.” Wilson, 519 U.S. at 412 (citation omitted). That this practice weighed 

heavily on the public side of the Brignoni-Ponce scales was ‘‘too plain 

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21-10670 Opinion of the Court 21

for argument.” Id. The practice’s purpose, officer safety, was “both 

legitimate and weighty.” Id.

The protection of officer safety was legitimate and weighty 

when Dunn asked Johnson to identify himself. Johnson was unaware of the state policy of requiring passengers in lawfully stopped 

vehicles to identify themselves. Should that unawareness counter 

the weight given the public’s interest in officer safety? At best for 

Johnson, it’s an open question.

The District Court’s answer to the second question this appeal presents was that Supreme Court precedent clearly established 

that Deputy Dunn violated Johnson’s Fourth Amendment right not 

to be subjected to an unreasonable seizure in requiring Johnson to 

identify himself. We disagree. Supreme Court precedent—in particular, the decisions the District Court relied on—did not clearly 

establish as a matter of Fourth Amendment law that an officer cannot ask a passenger to identify himself unless the officer has this 

reasonable suspicion or reason to believe that the passenger poses

a risk to his safety. Therefore, Dunn is entitled to the dismissal of 

Johnson’s Fourth Amendment claim under the doctrine of qualified immunity.

IV.

The District Court concluded that Deputy Dunn lacked arguable probable cause to arrest Johnson for violating § 843.02 because Johnson had a Fourth Amendment right to refuse to identify 

himself when Dunn asked him to. The District Court erred. We 

doubt that the Florida Supreme Court would hold that a passenger 

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22 Opinion of the Court 21-10670

is free to resist an officer’s request for identification in the setting 

this case presents. At the very least, it is arguable that the Court 

would uphold the request and find the officer had at least arguable 

cause to arrest the passenger for resisting an officer without violence in violation of § 843.02.

V.

For the reasons we have expressed, the District Court’s judgment denying Deputy Dunn’s motion to dismiss pursuant to the 

doctrine of qualified immunity is

REVERSED.

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21-10670 BRANCH, J., Concurring 1

BRANCH, Circuit Judge, Concurring:

To overcome a government official’s invocation of the defense of qualified immunity, a plaintiff must show (1) that the official violated a constitutional right and (2) that the right was “clearly 

established” at the time of the official’s purported misconduct. 

Pearson v. Callahan, 555 U.S. 223, 232 (2009). Notably, we may address the two prongs in any order. Id. at 236. I take the second 

prong first. 

The majority concludes that Brown v. Texas, 443 U.S. 47 

(1979), and Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 

177 (2004), establish that Officer Dunn did not commit a constitutional violation when he required Johnson to provide identification 

during the traffic stop. The dissent, on the other hand, argues that 

binding Supreme Court precedent, including Brown and Hiibel, establishes that Officer Dunn did commit a constitutional violation 

when he required Johnson to provide identification. That the majority and the dissent vehemently debate the proper application of 

Brown and Hiibel to the particular facts of this case is an indication 

that the caselaw does not clearly establish that a constitutional violation occurred. See District of Columbia v. Wesby, 583 U.S. 48, 64 

(2018) (emphasizing that “existing precedent must place the lawfulness of the particular arrest ‘beyond debate’” for a violation to be 

clearly established (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 

(2011))). 

The majority concludes that Johnson has failed to meet his 

burden on both prongs. But because Johnson has not satisfied the 

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2 BRANCH, J., Concurring 21-10670

“clearly established” prong of the qualified immunity analysis, I 

stop here and conclude that Officer Dunn is entitled to qualified 

immunity and that we need not address the first prong. As such, I 

concur only in the judgment of the majority. 

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21-10670 WILSON, J., Dissenting 1

WILSON, Circuit Judge, Dissenting:

Appellant James Dunn and other Pasco County police officers pulled over Appellee Marques Johnson’s father for driving with 

an allegedly obscured license plate. The traffic stop was routine, 

and the interactions between Johnson’s father and the officers were 

amicable. Officer Dunn demanded that Johnson—who was quietly 

sitting in the passenger seat of his father’s car—identify himself. 

Johnson calmly stated that he was not the subject of the investigation and declined to provide his identification. So, Officer Dunn 

arrested him. 

The Supreme Court has consistently held that law enforcement officers cannot require, by threat of arrest, that an individual 

identify himself absent reasonable suspicion of wrongdoing, and to 

this day, the Court has not qualified this basic principle. Because 

the majority attempts to manufacture a new exception to this important constitutional protection, I respectfully dissent. 

I would affirm the well-reasoned decision of the district 

court denying Officer Dunn’s motion to dismiss. 

I.

On August 2, 2018, Johnson and another person were passengers in a motor vehicle driven by Johnson’s father in Pasco 

County, Florida. Officer Dunn stopped the vehicle, which was towing a motorcycle on a trailer, on the basis that the car’s license plate 

was obscured from view. Officer Dunn arrived with Officers 

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2 WILSON, J., Dissenting 21-10670

Ramos and Pini and a film crew from the A&E television show 

“Live PD.”1

Officer Dunn approached the passenger side of the vehicle 

and requested the driver’s information. He then asked Johnson if 

he had his “ID on him too.” Johnson responded that he was not 

required to identify himself, being merely a passenger and not the 

subject of the investigation. Officer Dunn responded that Florida 

law required Johnson to identify himself and that he, Officer Dunn, 

would pull Johnson from the vehicle and arrest him for resisting an 

officer if he did not identify himself. Officer Ramos repeated that 

Johnson must identify himself. Officer Ramos then stated to Johnson’s father, “Listen, you can tell us who he is. We can do it that 

way.” Johnson’s father, who had already provided his own identification, then identified Johnson as his son and provided Johnson’s 

name to both Officers Dunn and Ramos. Officer Pini then approached, and Officer Dunn stated to him, “He didn’t want to give 

me his ID and all that, but his dad gave him up.”

After making a brief trip to the police car to enter information into his computer, Officer Dunn returned and asked Officer

Pini to have his police dog conduct a drug sniff of the car. Officers 

Dunn and Pini agreed they would ask Johnson to exit the car and 

would forcefully pull him out if he did not exit voluntarily. Officer 

Pini then told Johnson and the other vehicle occupants that his dog 

would be conducting a narcotics sniff of the vehicle and ordered 

1 The traffic stop was captured by the film crew, a video recording of which 

remains accessible at https://youtu.be/zXEXu640E1k.

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21-10670 WILSON, J., Dissenting 3

Johnson to exit. As Johnson was exiting the vehicle, Officer Dunn 

stated to Officer Pini that “I am going to take him in no matter 

what because he’s resisting me.” Officer Dunn then placed Johnson in handcuffs. After placing him in handcuffs, Officer Dunn 

grabbed Johnson’s pinky finger and twisted it away from the rest 

of his hand to force him to release his wallet. After Johnson asked 

why he was being arrested, Officer Dunn responded that it was because Johnson did not give his name when it was demanded, and 

therefore, he was resisting. While Johnson was seated in Officer

Dunn’s police vehicle, Officer Dunn entered Johnson’s information 

into the computer.

At this time, Officer Ramos was speaking to Johnson’s father 

and the other passenger, while Officer Pini searched the vehicle. 

Johnson’s father again provided Johnson’s information to Officer

Ramos, even confirming the spelling of Johnson’s first name and 

providing Johnson’s date of birth. 

Officer Ramos then went to Officer Dunn to provide him 

with this information, but Officer Dunn responded, “Oh, I got it. I 

got his ID out of his wallet.” Officer Dunn then explained to Johnson’s father that he was taking Johnson to jail because Florida law 

mandated that “all occupants of the vehicle are required to . . . 

identify themselves, they don’t have to physically produce an identification, but they got to at least ID themselves and we got to be 

able to ID who is in the car . . . [s]o with him doing that, its obstruction . . . .” He then stated, “. . . if anyone prevents me from doing 

my job, I am going to take them to jail. I understand he is trying 

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4 WILSON, J., Dissenting 21-10670

to exercise his rights there and everything, but we also have rights 

to do our job.” Officer Pini did not find any drugs in the car. 

Johnson was taken to the Pasco County Jail and charged 

with a violation of Florida Statute § 843.02, Resisting Officer Without Violence to His or Her Person. The charges against Johnson 

were dismissed. 

Johnson sued Officer Dunn in his individual capacity, and 

Sheriff Chris Nocco in his official capacity, in federal district court 

for alleged constitutional and state law violations. The defendant 

officers moved to dismiss. In response to Johnson’s constitutional 

claim—False Arrest in violation of the Fourth Amendment—the 

officers argued they were entitled to qualified immunity. The district court granted the motion in part and denied it in part. Relevant here, the district court rejected Officer Dunn’s qualified immunity defense because Johnson had a legal right to refuse to provide his identification; therefore, Officer Dunn had neither actual 

nor arguable probable cause to arrest Johnson based on law that 

was clearly established at the time of the arrest. Officer Dunn appealed the denial of qualified immunity.

II.

Officer Dunn challenges the district court’s denial of qualified immunity for Johnson’s § 1983 false arrest claim. Qualified immunity protects municipal officers from liability in § 1983 actions 

if “their conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have 

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Establishing 

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21-10670 WILSON, J., Dissenting 5

a qualified immunity claim engages the parties in a burden-shifting 

test. See Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 

2009). Under this test, the officer must first demonstrate that he 

acted “within his discretionary authority.” Id. Once the officer has 

established this, the plaintiff must “show that qualified immunity 

should not apply.” Id. At this point, we utilize a two-prong framework, asking 1) whether the officer’s conduct “amounted to a constitutional violation,” and 2) whether the right was “clearly established” at the time of the violation. T.R. ex rel. Brock v. Lamar Cnty. 

Bd. of Educ., 25 F.4th 877, 882–83 (11th Cir. 2022). 

Officer Dunn arrested Johnson for violating Florida Statute 

§ 843.02, which states that “[w]hoever shall resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be 

guilty of a misdemeanor of the first degree.” There is no dispute 

that Officer Dunn was acting within his discretionary authority at 

the time of the arrest. So, for Johnson’s claim to overcome Officer 

Dunn’s defense of qualified immunity, Johnson must first show that 

Officer Dunn lacked probable cause to make the arrest—a constitutional violation—by showing either 1) that Officer Dunn was not 

engaged in “the lawful execution of any legal duty” when he required Johnson to reveal his identity, or 2) that he, Johnson, was not 

“resist[ing], obstruct[ing], or oppos[ing] any officer” under our interpretation of § 843.02. Then, Johnson must demonstrate that at 

least one of these foundations for a constitutional violation was 

clearly established at the time of the incident, such that Officer 

Dunn would not have even arguable probable cause to make the 

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6 WILSON, J., Dissenting 21-10670

arrest. If Johnson makes either of these showings, Officer Dunn is 

not entitled to qualified immunity. 

I would conclude that Officer Dunn lacked probable cause 

to arrest Johnson for two reasons. First, because the Supreme 

Court has time and again held that law enforcement officers cannot 

require identification from citizens without reasonable suspicion 

of wrongdoing, and they certainly cannot arrest those citizens unsuspected of wrongdoing for declining to disclose their identities, 

Officer Dunn was not engaged “in the lawful execution of any legal 

duty” when he arrested Johnson. The majority seems to recognize 

this principle but concludes that officers’ understandable anxiety 

about not knowing the names of everyone in a vehicle at a traffic 

stop justifies a new traffic-stop-safety exception to this constitutional safeguard. Because the Supreme Court has never carved out 

this deep of an exception, neither should we. Second, Johnson did 

not “resist, obstruct, or oppose” Officer Dunn under this court’s 

interpretation of Florida Statute § 843.02. For these reasons, I 

would conclude that Johnson’s arrest lacked probable cause and 

thus violated the Fourth Amendment’s protections. Further, because the Supreme Court precedents that establish these principles 

date back decades, I would hold that, at the time of Johnson’s arrest, it was clearly established that Officer Dunn’s conduct 

amounted to a constitutional violation. I will address each of these 

points in turn. 

Before I do, though, I will pause to make a couple brief 

notes. There is no question that our nation’s law enforcement 

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21-10670 WILSON, J., Dissenting 7

officers must frequently perform difficult, dangerous, and often 

thankless tasks in the service of their communities. The risks 

borne by officers is often underappreciated, and I doubt many officers who stumble over the constitutional line while confronting 

the undeniable stresses of their sworn duties do so with any malicious intent. Yet even mistakes that carry well-meaning officers 

over the line are nonetheless constitutional violations. I hold nothing but the utmost respect for my colleagues in the majority for 

their well-articulated positions on this matter. But, because I believe a citizen’s clearly established constitutional right was violated 

in this case, I believe the district judge got it right, and I must therefore dissent. Now, I will explain why. 

III.

The Fourth Amendment protects the “right of the people to 

be secure in their persons . . . against unreasonable searches and 

seizures.” U.S. Const. amend. IV. Our analysis of whether a citizen’s Fourth Amendment rights were violated under a particular 

set of facts considers “the reasonableness in all the circumstances 

of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1, 19 (1968). 

Whether an arrest meets the “reasonableness” requirement 

of the Fourth Amendment depends on “the presence or absence of 

probable cause for the arrest.” Skop v. City of Atlanta, 485 F.3d 1130, 

1137 (11th Cir. 2007). “[P]robable cause exists when the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable officer, establish ‘a probability or 

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8 WILSON, J., Dissenting 21-10670

substantial chance of criminal activity.’” Washington v. Howard, 25 

F.4th 891, 898–99 (11th Cir. 2022) (quoting District of Columbia v. 

Wesby, 138 S. Ct. 577, 586 (2018)). 

Determining whether Officer Dunn’s conduct amounted to 

a constitutional violation requires this court to decide whether an 

officer may compel a passenger at a lawful, routine traffic stop to 

identify himself—absent reasonable suspicion that the passenger 

was engaged in any criminality, and absent any extraordinary 

safety concerns. In addition, this court must consider whether the 

mere refusal to provide one’s name to police officers while they investigate the conduct of another amounts to “resistance” or “obstruction” under Florida Statute § 843.02. Guided by precedent, I 

would answer both inquiries in the negative. Consequently, I 

would hold that Officer Dunn’s arrest of Johnson lacked probable 

cause and constituted an unreasonable search and seizure in violation of the Fourth Amendment’s protections. 

A. Lawful Execution of Any Legal Duty

Officer Dunn arrested Johnson for declining to provide his 

name as a passenger at a routine traffic stop. For Officer Dunn to 

have probable cause to make this arrest under Florida Statute 

§ 843.02, he must have been engaged in the “lawful execution of 

any legal duty” when he required Johnson to disclose his identity. 

The question, then, is whether it was lawful for Officer Dunn, absent any reasonable suspicion that Johnson had engaged in wrongdoing, to require Johnson to identify himself.

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21-10670 WILSON, J., Dissenting 9

For Officer Dunn’s requirement to be lawful, it must be consistent with the Fourth Amendment’s command that government 

intrusions into privacy be reasonable under the circumstances. See 

Grady v. North Carolina, 575 U.S. 306, 310 (2015) (per curiam) (“The 

Fourth Amendment prohibits only unreasonable searches.”). An intrusion is generally reasonable if the government interest in conducting the search outweighs the private citizen’s interest in remaining free from arbitrary government interference. See Terry, 

392 U.S. at 20–21; Illinois v. Lidster, 540 U.S. 419, 427 (2004) (“[I]n 

judging reasonableness, we look to ‘the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with 

individual liberty.’” (quoting Brown v. Texas, 443 U.S. 47, 51 (1979))). 

For the government interest side of the scale to carry any 

weight, however, we must find both that the officer’s “action was 

justified at its inception, and [that] it was reasonably related in 

scope to the circumstances which justified the interference in the 

first place.” Terry, 392 U.S. at 20. “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from 

those facts, reasonably warrant that intrusion.” Id. at 21. 

I restate the facts of the stop as relevant to this point. Officer 

Dunn pulled over the vehicle carrying Johnson because the car’s 

license plate was obscured by an attached trailer. Johnson’s father 

operated the vehicle, while Johnson rode as a passenger in the front 

seat. Consistent with the scope of the investigation into the license 

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10 WILSON, J., Dissenting 21-10670

plate, Officer Dunn requested identifying information from Johnson’s father, who quickly complied. Then, despite not suspecting 

Johnson of any connection to the license plate or any other criminal activity, Officer Dunn required Johnson to disclose his identity as well. 

Johnson, citing his constitutional rights and the fact that he was 

only a passenger in the vehicle, declined to do so. Officer Ramos 

then told Johnson’s father that they could obtain Johnson’s information from him instead, and Johnson’s father subsequently identified his son. So, within one minute of Johnson’s initial refusal to 

reveal his identity, the officers acquired the information they 

sought. Nonetheless, Officer Dunn arrested Johnson for resisting 

an officer without violence.

In my view, this arrest ran afoul of the Fourth Amendment’s 

protections. As caselaw from the Supreme Court and this circuit 

makes clear, a police officer may not arrest individuals for declining 

to provide their names absent any reasonable suspicion of wrongdoing. 

In Brown v. Texas, police officers detained and arrested a pedestrian for violating a Texas law requiring a lawfully detained individual to provide his name and address to an officer who requests 

the information. 443 U.S. at 49. But there, the Supreme Court held 

that the arrest violated the Fourth Amendment “because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.” Id. at 52–53. Rejecting 

the State’s justification that the statute advanced the social objective of “prevention of crime,” the Court stated that “even assuming 

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21-10670 WILSON, J., Dissenting 11

that purpose is served to some degree by stopping and demanding 

identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the 

Fourth Amendment do not allow it.” Id. at 52. As the Court noted, 

“[in] the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant’s right 

to personal security and privacy tilts in favor of freedom from police interference.” Id. Although Brown involved a plaintiff who was 

detained outside of a vehicle, the Court conducted the same Terry 

Fourth Amendment analysis relevant here. See id. at 50–51. This is 

because the Fourth Amendment “applies to all seizures of the person . . . [and] [w]henever a police officer accosts an individual and 

restrains his freedom to walk away, he has ‘seized’ that person.” Id. 

at 50 (internal citations and quotations omitted). Thus, as far back 

as 1979, the Supreme Court made clear that officers may not detain 

individuals and require them to identify themselves absent reasonable suspicion of criminal conduct. See id. at 52. 

Twenty-five years later, in Hiibel v. Sixth Judicial District Court 

of Nevada, investigating officers received a report that a man had 

assaulted a woman in a red and silver GMC truck at a specific location. 542 U.S. 177, 180 (2004). Police officers drove to that location, 

spotted the truck, approached the suspect, and asked for the suspect’s identification in order to further their investigation. Id. at 

180–81. The suspect refused to identify himself after being asked 

eleven times, so the officers arrested him for violating Nevada’s 

“stop and identify” statute. Id. This time, the Court dismissed the 

petitioner’s Fourth Amendment claims because “there [was] no 

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12 WILSON, J., Dissenting 21-10670

question that the initial stop was based on reasonable suspicion, 

satisfying the Fourth Amendment requirements noted in Brown.” 

Id. at 184. The Court determined that suspects may be required to 

identify themselves at Terry stops. See id. at 186 (“Our decisions 

make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry stops.” (emphasis added)); see 

also id. at 187–88 (“The principles of Terry permit a State to require 

a suspect to disclose his name in the course of a Terry stop. . . . The 

request for [the suspect’s] identity has an immediate relation to the 

purpose, rationale, and practical demands of a Terry stop.” (emphasis added)). But the Court also reaffirmed and reemphasized the 

principle that “an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related

to the circumstances justifying the stop.” Id. at 188 (emphases 

added). 

Here, police officers stopped a vehicle driven by Johnson’s 

father due to an allegedly obscured license plate. Unlike the petitioner in Hiibel, Johnson—a passenger in the vehicle—was not the 

“suspect” of any alleged crime, and his identity bore no relation to 

the allegedly obscured license plate that justified stopping his father’s car in the first place. Much more like the petitioner in Brown, 

the officers possessed no reasonable suspicion to believe Johnson 

had engaged in any criminal conduct when they required him to 

reveal his identity. See 443 U.S. at 52–53. Without this requisite 

suspicion, however, the officers could not, consistent with the 

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21-10670 WILSON, J., Dissenting 13

Fourth Amendment, require identification from Johnson. See id.2 

Although requiring the name of a passenger may seem like an insignificant procedural matter, I think it obvious that the government has no interest in taking any step, however slight, beyond the 

bounds of the Constitution. 

By my reading of the caselaw, it was not lawful for Officer 

Dunn to require the disclosure of Johnson’s identity absent reasonable suspicion of wrongdoing. Consequently, Officer Dunn was not 

engaged “in the lawful execution of [a] legal duty” under Florida 

Statute § 843.02 and lacked probable cause to arrest Johnson. The 

arrest, therefore, violated Johnson’s constitutional rights. 

B. Officer Safety

Notwithstanding Terry’s holding that a seizure must be “justified at its inception” and any subsequent search must be 

2 I note that Officer Dunn’s conduct violated the Fourth Amendment because 

he required Johnson to disclose his identity. Contrary to the majority’s contention, I recognize that it is abundantly clear that Officer Dunn was free to request 

Johnson’s name. In Florida v. Bostick, the Supreme Court noted that “even 

when officers have no basis for suspecting a particular individual, they may 

generally ask questions of that individual.” 501 U.S. 429, 434–35 (1991) (emphasis added). Police officers cross the constitutional line, however, when they 

“convey a message that compliance with their requests is required.” Id. at 435. 

Indeed, the Court emphasized that absent reasonable suspicion of wrongdoing, it had “consistently held that a refusal to cooperate, without more, does 

not furnish the minimal level of objective justification needed for a detention 

or seizure.” Id. at 437 (collecting cases). While Bostick did not involve a traditional traffic stop, it did involve questioning a passenger on a parked commercial bus, a situation that, largely, presents the same risks to officers at issue 

here. See id. at 431–32. 

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14 WILSON, J., Dissenting 21-10670

“reasonably related in scope to the circumstances” that justified the 

initial interference, 392 U.S. at 20, Officer Dunn asks this court to 

hold that a deputy can constitutionally command passengers at traffic stops to reveal their identities—even absent reasonable suspicion 

of wrongdoing—and arrest those who fail to comply. While this 

proposition seems to fly in the face of Brown and Hiibel, Officer 

Dunn argues that general traffic-stop safety concerns make such an 

intrusion into the liberties of vehicle passengers reasonable, even if 

those passengers have done nothing specific to warrant such an intrusion. In making this argument, Officer Dunn does not articulate 

any specific safety concerns the passengers presented during this 

routine traffic stop. Rather, Officer Dunn argues that a generalized 

concern that officers may not know “who a passenger might be and 

whether that passenger has a warrant out for his arrest or might 

otherwise present a safety risk” justifies a broad rule that officers 

may require identification from passengers at every traffic stop. Initial Brief of Defendant/Appellant James Dunn at 8, Johnson v. 

Dunn, No. 21-10670 (11th Cir. filed July 19, 2021). After reviewing 

the Supreme Court’s precedents on this issue, I disagree. 

I start with the basic rule that “[a] seizure for a traffic violation justifies a police investigation of that violation.” Rodriguez v. 

United States, 575 U.S. 348, 354 (2015) (emphasis added). During a 

traffic stop, police officers’ “mission” is “to address the traffic violation that warranted the stop and attend to related safety concerns.” 

Id. (emphasis added) (citation omitted). It must be remembered, 

though, that “the government’s officer safety interest stems from 

the mission of the stop itself.” Id. at 356. So, while traffic stops 

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21-10670 WILSON, J., Dissenting 15

indeed pose unique risks to police officers, and those risks in turn 

may justify “negligibly burdensome precautions,” those precautions may not “detour[]” from the officers’ mission. Id. 

To be sure, the Supreme Court has identified specific safety 

risks unique to traffic stops and related to officers’ missions that 

warrant additional, targeted intrusions into vehicle occupants’ liberties regardless of reasonable suspicion. Yet—as I discuss below—

the specific dangers cited by the Court are not lessened to any significant degree by knowing the names of passengers entirely unsuspected of wrongdoing. 

The majority highlights those same unique dangers to argue 

in favor of creating a broad rule that would allow police officers to 

extract the names of passengers at any traffic stop, regardless of 

reasonable suspicion. The majority cites principally to two cases: 

Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) and Maryland v. Wilson, 519 U.S. 408 (1997). Yet, by my reading, those cases 

do not support the proposition that requiring the names of passengers unsuspected of wrongdoing during a routine traffic stop is 

part of the officers’ lawful mission or, at most, a de minimis additional intrusion. Rather, in my opinion, those cases stand for the 

principle that specific risks unique to traffic stops make it reasonable for officers to exercise temporary physical control over drivers 

and passengers. 

In Mimms, the Court held that officers may require the driver

of a vehicle reasonably stopped for a traffic violation to step out of 

the automobile. 434 U.S. at 111. To reach this conclusion, the 

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16 WILSON, J., Dissenting 21-10670

Court balanced the public interest proffered by the State—police 

officer safety—with an individual’s right to be free from arbitrary 

government interference. Id. at 109. The Court found “too plain 

for argument” the State’s safety justification, citing 1) the danger 

that officers may face dealing with an individual whose movements 

may be obscured while inside a vehicle, and 2) the hazard created 

by passing traffic while an officer stands on the driver’s side of an 

automobile. Id. at 110–11. “Against this important interest,” the 

Court considered a request to get out of a vehicle to be a de minimis

intrusion because “[t]he driver is being asked to expose to view very 

little more of his person than is already exposed” and “[t]he 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.” Id. at 

111.

In Wilson, the Supreme Court extended its reasoning in 

Mimms to hold that law enforcement may also require passengers to 

get out of a vehicle during a traffic stop. 519 U.S. at 415. This time, 

the Court weighed the public interest in officer safety against the 

personal liberties of passengers. See id. at 413–14. The Court found 

that while the danger posed by oncoming traffic is reduced on the 

passenger-side of the vehicle, “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,” and therefore, it is reasonable to require passengers to step outside of a vehicle where they “will be denied 

access to any possible weapon that might be concealed in the interior 

of the passenger compartment.” Id. at 414 (emphases added). 

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21-10670 WILSON, J., Dissenting 17

Indeed, it is this risk of “sudden violence or frantic efforts to conceal or destroy evidence” that counsels officers to “routinely exercise unquestioned command of the situation.” Id. (quoting Michigan v. Summers, 452 U.S. 692, 702–03 (1981)). This situational command is achieved by briefly controlling the physical movements of

vehicle occupants. Considering the personal liberty side of the 

scale again, the Court noted that although there is no probable 

cause to believe the passengers committed a vehicular offense, like 

in Mimms, the only practical difference for passengers “is that they 

will be outside of, rather than inside of, the stopped car.” Id. On 

balance, then, the Court found that requiring passengers to step 

out of an automobile during a traffic stop is reasonable under the 

circumstances. See id. at 415.

Both Mimms and Wilson dealt with a specific risk inherent in 

traffic stops: the possibility of vehicle occupants accessing the 

means with which to do violence. The solution—permitting officers to require vehicle occupants to step outside of the automobile—directly targeted that specific risk by physically moving occupants away from any concealed weapons. Here, however, there is 

a misalignment between the specific risk identified in Mimms and 

Wilson and Officer Dunn’s actions. Indeed, it is unclear how knowing the name of a passenger who is not suspected of any wrongdoing would significantly help to prevent that passenger from reaching concealed weapons and committing acts of violence. See 

Mimms, 434 U.S. at 110 (citing a report on officer shootings to support the Court’s recognition of the “inordinate risk confronting an 

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18 WILSON, J., Dissenting 21-10670

officer as he approaches a person seated in an automobile”).3 To 

the degree that knowing the names of each vehicle occupant does 

address the specific risk identified in Mimms and Wilson, it does so 

in a way far more indirect—far more like a proscribed “detour”—

than the method endorsed in Mimms and Wilson.4 

3 My position would not leave police officers without any ability to take precautionary measures. If officers suspect that vehicle occupants are concealing 

weapons or might destroy evidence—or even if they do not—the Supreme 

Court has prescribed a solution: they may order everyone out of the vehicle. 

See Wilson, 519 U.S. at 415. As described in more detail below, officers have 

even more prophylactic tools at their disposal if they develop a reasonable suspicion that a safety risk in fact exists or if a hazardous situation arises. 

4 In United States v. Landeros, the Ninth Circuit rejected the idea that extending 

the length of a traffic stop to determine a passenger’s name would enhance 

officer safety, noting that “knowing [the passenger’s] name would not have 

made the officers any safer. Extending the stop, and thereby prolonging the 

officers’ exposure to [the passenger], was, if anything, inversely related to officer safety.” 913 F.3d 862, 868 (9th Cir. 2019) (quotation marks omitted). 

While I do not go so far here, I note that other circuits—though, only the 

Ninth explicitly contemplated officer safety concerns—have held that, absent 

reasonable suspicion of wrongdoing, officers may not rely on a passenger’s 

mere failure to identify himself at a traffic stop as a justification for an arrest or 

a prolonged detention. See id. at 870 (finding that officers may not extend a 

traffic stop to demand a passenger’s identity absent reasonable suspicion of 

criminality); Corona v. Aguilar, 959 F.3d 1278, 1283–85 (10th Cir. 2020) (holding 

that officers could not arrest a passenger for concealing his identity absent “a 

particularized and objective basis for suspecting Plaintiff had committed any 

offense or was engaging in criminal activity”); Johnson v. Thibodaux City, 887 

F.3d 726, 734 (5th Cir. 2018) (concluding that officers could not continue the 

detention of a passenger unsuspected of wrongdoing “solely to obtain identification”). 

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21-10670 WILSON, J., Dissenting 19

And I must still balance the government interest in taking 

this detour against considerations of individual liberties. Again, 

the liberty interest at stake here is quite different from the one addressed in Mimms and Wilson. Unlike being asked to expose a little 

more of one’s body during a traffic stop, having to disclose one’s 

identity is a much greater (and permanent) additional intrusion 

into privacy. The question in a case like Johnson’s is not simply 

whether a passenger would spend a brief traffic stop inside or outside of a car, but whether a passenger would be forced to reveal to 

law enforcement his identity (and everything attendant to it). 

While the latter intrusion may only seem slight—or de minimis—

its constitutional significance is highlighted by those cases that require officers to have reasonable suspicion of criminality before being able to require that information. See Brown, 443 U.S. at 52; 

Hiibel, 542 U.S. at 187–88; Bostick, 501 U.S. at 437. Given the minimal degree to which extracting the names of passengers unsuspected of wrongdoing addresses the risks identified in Mimms and 

Wilson, I would find that “the balance between the public interest 

and [the individual’s] right to personal security and privacy tilts in 

favor of freedom from police interference.” Brown, 443 U.S. at 52. 

Because the rule proposed by Officer Dunn bears little relation to those dangers specifically identified in Mimms and Wilson, I 

am left only to consider the separate risk that Officer Dunn identified: not knowing every individual in the vehicle, their criminal record, or their proclivity for violence. This risk—not knowing everyone in a group while investigating the conduct of an individual—is 

not unique to a traffic-stop setting. Rather, it arises any time police 

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20 WILSON, J., Dissenting 21-10670

officers deal with a single person in a gathering, and the Supreme 

Court has yet to identify any situation in which law enforcement 

may require individuals unsuspected of wrongdoing to disclose 

their identities. Thus far, the Court has only crafted a narrow, per 

se rule permitting additional intrusions without reasonable suspicion

at traffic stops in order to address dangers that are inherent and 

unique to traffic stops. See Wilson, 519 U.S. at 414–15. 

When police officers conducting traffic stops are faced with 

legitimate safety concerns and want to do anything more than have 

vehicle occupants step outside of the automobile, the Supreme 

Court generally requires something more to be shown in order to 

justify the additional intrusions into privacy. This “something 

more” may either be reasonable suspicion that a safety risk in fact 

exists or the development of a hazardous situation. In Knowles v. 

Iowa, the Court identified a number of precautionary steps that officers may take to protect themselves during traffic stops. 525 U.S. 

113, 117–18 (1998). These steps include requiring drivers and passengers to step out of a vehicle, id. at 118 (citing Mimms, 434 U.S. at 

111 and Wilson, 519 U.S. at 414, respectively); patting down drivers 

and passengers for concealed weapons “upon reasonable suspicion 

that they may be armed and dangerous,” id. (citing Terry, 392 U.S. 

at 29–30); and searching the passenger compartment of a vehicle 

for weapons “upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon,” id. (citing 

Michigan v. Long, 463 U.S. 1032, 1049 (1983)). Arizona v. Gant also 

grants officers the ability to search a vehicle’s passenger compartment “when the arrestee is unsecured and within reaching distance 

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21-10670 WILSON, J., Dissenting 21

of the passenger compartment at the time of the search” or “when 

it is ‘reasonable to believe evidence relevant to the crime of arrest 

might be found in the vehicle.’” 556 U.S. 332, 343 (2009) (quoting 

Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring in judgment)).5 

Importantly, these additional intrusions are specifically designed to physically separate vehicle occupants from weapons. 

And just as important for this case, out of this procedural toolkit, 

only the minimally invasive step of having vehicle occupants briefly 

step outside can be justified by general traffic stop safety concerns. 

That is, Knowles demonstrates that officers may, as a starting point 

to protect their safety, require occupants to step out of a vehicle at 

traffic stops. But if they wany to intrude any further, they need 

either reasonable suspicion or some extraordinary safety concern. 

See Knowles, 525 U.S. at 117–18 (noting that while officers may order 

the driver and passengers out of the car, they may only conduct 

pat-downs of individuals or search compartments “upon reasonable suspicion”). Here, neither were present.

In my view, the precedents established by the Supreme 

Court require this panel to reject Officer Dunn’s invitation to create 

a new, broad rule granting police officers authority to extract the 

5 Knowles originally cited New York v. Belton, 453 U.S. 454, 460 (1981) for the 

proposition that officers may conduct a full search of a vehicle and “containers 

therein” incident to a custodial arrest. 525 U.S. at 118. Belton, however, was 

effectively abrogated by Gant. See 556 U.S. at 343–44; see also Davis v. United 

States, 564 U.S. 229, 234–35 (2011) (recognizing the abrogation). 

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22 WILSON, J., Dissenting 21-10670

names of any vehicle passenger at any traffic stop, regardless of 

whether reasonable suspicion is present. 

This is not to say, however, that officer safety concerns can 

never justify police requiring identification from passengers at traffic stops in the absence of reasonable suspicion. The record in this 

case does not require me to consider that question today. With regard to officer safety, all I would hold is that the safety concern alleged by Officer Dunn—the general risk arising from not knowing 

the names of every vehicle occupant at a routine traffic stop—does 

not justify the additional intrusion of compelling a passenger unsuspected of wrongdoing to disclose his identity to the government. 

In my opinion, Officer Dunn’s requirement that Johnson 

identify himself was not made lawful through reasonable suspicion 

or officer-safety concerns, and therefore, Johnson committed no 

crime by refusing to comply. As a result, there was no probable 

cause to believe that Johnson had violated Florida Statute § 843.02. 

C. Resist, Obstruct, or Oppose

As a refresher, the statute under which Johnson was arrested 

makes it a crime to “resist, obstruct, or oppose any officer . . . in the 

lawful execution of any legal duty, without offering or doing violence to the person of the officer.” Fla. Stat. § 843.02. Above, I 

addressed the question of whether, in my view, Officer Dunn was 

engaged in the “lawful execution of any legal duty,” and answered 

in the negative. Here, I address the additional question of whether 

a person’s non-violent refusal to comply with an (unlawful) 

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21-10670 WILSON, J., Dissenting 23

demand to disclose his identity can constitute resistance or obstruction of a nearby investigation unrelated to that demand. I would

conclude that it cannot. Reviewing our caselaw, it is clear to me 

that “mere words” do not constitute obstruction under Florida 

Statute § 843.02. Accordingly, for this reason too, Johnson’s arrest 

lacked probable cause and thus violated the protections guaranteed 

by our Constitution. 

For years, we have recognized that verbal interruptions and 

inquiries as to an officer’s purpose cannot, on their own, justify 

probable cause for an arrest under Florida Statute § 843.02. See Davis v. Williams, 451 F.3d 759, 767 (11th Cir. 2006). We have also previously held that “‘mere words’ would not suffice to provide probable cause for resisting without violence.” Alston v. Swarbrick, 954 

F.3d 1312, 1319 (11th Cir. 2020). In doing so, we found that a defendant officer lacked probable cause for making an arrest under 

§ 843.02 where the arrestee “merely declined to cooperate or provide useful information” concerning an officer’s investigation into 

someone else. Id. 

Officer Dunn required Johnson’s identification while investigating an obscured license plate on a vehicle driven by Johnson’s 

father. In response, Johnson simply stated—correctly, in my 

view—that he was only a passenger in the vehicle and was therefore not required to provide his name. Although Officer Ramos 

requested and quickly received Johnson’s identifying information 

from Johnson’s father, and although Officer Dunn later confirmed 

with his fellow officers that he had verified this information as true 

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24 WILSON, J., Dissenting 21-10670

and accurate, Officer Dunn nonetheless arrested Johnson for obstructing an officer without violence. But absent some hinderance 

beyond mere words, Officer Dunn lacked probable cause to make 

this arrest under our interpretation of § 843.02.6 Because Officer 

Dunn lacked probable cause, his arrest of Johnson violated Johnson’s constitutional rights. 

IV.

Having concluded that Officer Dunn violated Johnson’s constitutional rights by arresting him under Florida Statute § 843.02 

without probable cause, I now consider whether Johnson’s rights 

in this situation were clearly established. See Corbitt v. Vickers, 929 

F.3d 1304, 1311 (11th Cir. 2019). “Clearly established means that, 

at the time of the officer’s conduct, the law was sufficiently clear 

that every reasonable official would understand that what he is doing is unlawful.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 

(2018) (internal quotation marks omitted). 

A right may be clearly established for qualified immunity purposes in one of three ways: (1) case law 

with indistinguishable facts clearly establishing the 

constitutional right; (2) a broad statement of principle 

6 Beyond declining to provide his name, nothing in the record suggests that 

Johnson did anything to obstruct the officers’ investigation into the license 

plate and their later fruitless drug search. See Alston, 954 F.3d at 1319 (noting 

that that probable cause for an arrest under § 843.02 does not exist when someone “merely decline[s] to cooperate or provide useful information” and does 

not “physically obstruct [an officer’s] path or otherwise prevent him from conducting his investigation as to [another person]”). 

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21-10670 WILSON, J., Dissenting 25

within the Constitution, statute, or case law that 

clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was 

clearly violated, even in the total absence of case law. 

D.H. ex rel. Dawson v. Clayton Cnty. Sch. Dist., 830 F.3d 1306, 1318 (11th Cir. 

2016). 

Law enforcement officers can marshal a successful qualified 

immunity defense if they can show that they had “arguable probable cause” to effectuate an arrest. Hardigree v. Lofton, 992 F.3d 1216, 

1225 (11th Cir. 2021). “Arguable probable cause exists if ‘reasonable 

officers in the same circumstances and possessing the same 

knowledge as the Defendants could have believed that probable 

cause existed.’” Id. (quoting Swint v. City of Wadley, 51 F.3d 988, 996 

(11th Cir. 1995)). This determination “depends on the elements of 

the alleged crime and the operative facts.” Id. at 1230. Here, if 

Johnson’s rights were not “clearly established,” then Officer Dunn 

had arguable probable cause to make the arrest. 

In my opinion, it was clearly established that Officer Dunn’s 

arrest of Johnson under Florida Statute § 843.02 violated Johnson’s 

Fourth Amendment rights. At the time of Johnson’s arrest, a string 

of controlling cases made clear that police officers may not require 

identification absent reasonable suspicion of criminality and that 

“mere words” do not constitute obstruction of officers performing 

their legal duties under § 843.02. Further, there was no reason to 

believe that concerns about officer safety at a routine traffic stop 

would justify requiring passengers unsuspected of wrongdoing to 

disclose their identities. On these three bases, I would find that “a 

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26 WILSON, J., Dissenting 21-10670

broader, clearly established principle . . . control[s] the novel facts,” 

making it apparent “in the light of pre-existing law” that Officer

Dunn’s actions were unlawful. See Corbitt, 929 F.3d at 1312. 

A. Lawful Execution of Any Legal Duty

The first basis on which I would find Johnson’s arrest unconstitutional is that Officer Dunn lacked reasonable suspicion of 

wrongdoing when he required Johnson to disclose his identity. Supreme Court precedent has consistently required an officer to have 

a reasonable and articulable suspicion that an individual is involved 

in criminal activity before requiring identification. 

This principle has long been clearly established. First, that 

traffic stops are subject to the same rules as Terry stops has been 

clearly established since at least 1984. See Berkemer v. McCarty, 468 

U.S. 420, 439–40 (1984) (“[T]he usual traffic stop is more analogous 

to a so-called ‘Terry stop,’ than to a formal arrest.” (internal citation 

omitted)). Second, under Terry’s progeny—Brown and Hiibel—it 

has been clearly established since at least 2004 (if not 1979) that a 

person cannot be arrested for refusing to identify themselves absent reasonable suspicion. See Hiibel, 542 U.S. at 188 (approving 

compulsory identification only “in the course of a valid Terry stop”

and emphasizing that “an officer may not arrest a suspect for failure 

to identify himself if the request for identification is not reasonably 

related to the circumstances justifying the stop”) (2004); Brown, 443 

U.S. at 51–53 (holding that officers could not require an individual 

who merely “looked suspicious” to identify himself absent “a reasonable suspicion that he was involved in criminal conduct”) 

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21-10670 WILSON, J., Dissenting 27

(1979). These decisions, handed down well before Johnson’s arrest 

on August 2, 2018, set forth clearly established law that Johnson 

could not be arrested for refusing to identify himself where there 

was no reasonable suspicion that he had committed a crime. 

Officer Dunn pushes back on this conclusion, arguing that 

Brown and Hiibel could not establish a guiding principle for officers 

in this particular situation because those cases did not deal with 

passengers in a lawfully stopped vehicle being asked to identify 

themselves. But our qualified immunity jurisprudence “does not 

require a case directly on point for a right to be clearly established.” 

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7–8 (2021) (quoting White v. 

Pauly, 580 U.S. 73, 79 (2017) (per curiam)). A party cannot say that, 

because we have not yet considered a novel, context-specific exception to the general rule, that the rule itself is not clearly established 

in that context. But that is what the majority erroneously does here 

with little reasoning as to why. 

B. Officer Safety

The second basis on which I would find Johnson’s arrest unconstitutional is that general concerns for officer safety did not justify Officer Dunn’s actions. The default rule is that officers must 

have reasonable suspicion of criminality to require individuals to 

identify themselves. See Brown, 443 U.S. at 51–52. However, recognizing the “legitimate and weighty” significance of officer safety 

and the specific risks to officers created by the unique circumstances of traffic stops, the Supreme Court has determined that it 

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28 WILSON, J., Dissenting 21-10670

is constitutionally permissible for police officers conducting traffic 

stops to take certain precautions. See Knowles, 525 U.S. at 117–18. 

Nevertheless, the Court has also noted that concerns for officer safety, even in the context of a traffic stop, do not render all 

additional intrusions into the privacy of vehicle occupants reasonable. Absent suspicion of wrongdoing, the Court has only permitted officers to take some control over passengers’ physical movements in order to restrict their ability to do violence or destroy evidence. See id. at 117–18; Wilson, 519 U.S. at 414; see also United States 

v. Lewis, 674 F.3d 1298, 1306 (11th Cir. 2012) (noting in a case where 

two individuals in a group of four possessed firearms that “[c]ase

precedent from both the Supreme Court and this Circuit has established that, for safety reasons, officers may, in some circumstances, 

briefly detain individuals about whom they have no individualized 

reasonable suspicion of criminal activity in the course of conducting a valid Terry stop as to other related individuals”). Thus far, the 

Court has held that further intrusions require reasonable suspicion 

of wrongdoing or some heightened concern for officer safety. See

Knowles, 525 U.S. at 117–18. Neither existed here, nor does Officer 

Dunn claim they did. 

In short, although the Supreme Court has identified specific 

risks inherent in traffic stops and has crafted targeted procedural 

remedies to address them, the Court has not created the additional 

broad rule newly proposed by the majority. Instead, the Court has 

required more to be shown if officers want to justify anything beyond temporarily controlling the physical movements of 

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21-10670 WILSON, J., Dissenting 29

passengers. So, I would find that at the time of Johnson’s arrest, it 

was clear that the boundaries defining permissible police intrusions 

into passengers’ privacy did not extend to cover Officer Dunn’s conduct. 

C. Resist, Obstruct, Oppose

The third basis on which I would find Johnson’s arrest unconstitutional is that this court has found, as far back as “[June 2011] 

it was clearly established that . . . ‘mere words’ [do] not suffice to 

provide probable cause for resisting without violence” under Florida Statute § 843.02. Alston, 954 F.3d at 1319. We have also found 

that by 2011 it was clearly established that, absent some other form 

of obstruction, simply declining to cooperate or provide useful information cannot support even arguable probable cause for an arrest under § 843.02. Id. So here, in August 2018, Officer Dunn 

lacked even arguable probable cause to arrest Johnson under 

§ 843.02 given that 1) the officers were investigating a traffic offense 

for which Johnson was not a suspect, 2) Johnson merely explained 

his rights and declined to provide his name, 3) Officer Ramos told 

Johnson’s father that his identification of his son would suffice, and 

4) Officer Dunn then quickly received and verified Johnson’s information. 

In my view, no “reasonable officer[] in the same circumstances and possessing the same knowledge as [Officer Dunn] could 

have believed that probable cause existed” for an arrest for obstructing an officer without violence where the detainee was not suspected of wrongdoing, simply declined to provide his name, was 

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30 WILSON, J., Dissenting 21-10670

nonetheless quickly and truthfully identified, and was identified in 

a manner consistent with an officer’s instructions. Hardigree, 992 

F.3d at 1225. Therefore, I agree with the district court below that 

this arrest violated Johnson’s clearly established Fourth Amendment rights. 

V.

The Supreme Court has repeatedly held that reasonable suspicion of criminality is needed before police officers can require individuals to identify themselves. While the Court has found that 

safety concerns in the unique context of traffic stops justify officers

taking certain precautions, it has not yet determined that those 

concerns warrant eschewing this well-established rule. Given the 

record in this case, I would decline to depart from that rule today. 

However, because the facts of this case do not necessitate it, I 

would go no further than to hold that in the context of a routine 

traffic stop, it is clear that general safety concerns do not justify officers requiring the names of passengers who are not suspected of 

any criminality. I would leave for another panel and a different record the question of whether safety concerns at traffic stops can ever 

reasonably justify such an intrusion. Further, I would hold that at 

the time of the arrest, it was clearly established that “mere words” 

do not constitute obstruction or resistance of an officer under Florida Statute § 843.02. Therefore, in my view, Officer Dunn lacked 

actual and arguable probable cause to arrest Johnson under 

§ 843.02. This arrest, then, violated Johnson’s clearly established 

Fourth Amendment rights.

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21-10670 WILSON, J., Dissenting 31

Though sincerely appreciative of the risks faced by our law 

enforcement officers and of the views articulated by my colleagues 

in the majority, for the reasons above, I would affirm the decision 

of the district court. 

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