State of Tennessee v. Wayne Donaldson

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 14, 2012 Session

STATE OF TENNESSEE v. WAYNE DONALDSON

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 2009C2849 Cheryl A. Blackburn, Judge

No. M2010-00690-SC-R11-CD - Filed August 24, 2012

An officer stopped the defendant for a traffic violation. When the officer ordered the

defendant out of his vehicle to sign the citation, he observed what appeared to be a bag of

cocaine on the floorboard of the driver’s side. Charged with possession with intent to sell

or deliver twenty-six grams or more of cocaine in a school zone, the defendant moved to

suppress the evidence as the product of an unlawful seizure. The trial court sustained the

motion, and the Court of Criminal Appeals affirmed. This Court granted the State’s

application for permission to appeal. Because an officer, after making a lawful stop for a

traffic violation, may routinely direct the driver outside of the vehicle, the order of

suppression is reversed, and the cause is remanded for trial.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals is Reversed; Remanded to the Criminal Court for Davidson County

G ARY R. W ADE, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK, C.J.,

J ANICE M. H OLDER, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

Mark A. Fulks, Senior Counsel; Victor S. 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 Donaldson.

OPINION

Shortly after midnight on March 20, 2009, Wayne Donaldson (the “Defendant”) made

a right turn at a traffic light from Gallatin Road in Davidson County onto Old Hickory

Boulevard. Officer Joshua Baker of the Metropolitan Nashville Police Department observed

the Defendant drive past the white stop line before coming to a halt and then turn right

without giving a turn signal. Based upon his determination that the Defendant had violated

two separate ordinances by failing to properly stop prior to a turn and by failing to use a turn

signal, Officer Baker activated his blue lights, and the Defendant stopped in a Walmart

parking lot. After acquiring the vehicle registration and driver’s license from the Defendant,

who remained seated in his vehicle, Officer Baker returned to his patrol car, checked on the

Defendant’s prior criminal history, and wrote out a citation for the traffic offenses. Although

there were no active warrants against the Defendant at the time, Officer Baker determined

that he had prior driving under the influence offenses and had previous drug-related charges.

Officer Baker, who had prepared a citation,1 returned to the vehicle and asked the Defendant

to step outside. As the Defendant opened the door of his vehicle, Officer Baker saw what

appeared to be a bag of cocaine on the floorboard of the driver’s side. The Defendant was

placed under arrest and charged with possession with intent to sell or deliver twenty-six

grams or more of a substance containing cocaine, a Schedule II drug, within 1,000 feet of a

school. See Tenn. Code Ann. §§ 39-17-417 (Supp. 2008) & -432 (2006).

Motion to Suppress

Prior to trial, the Defendant filed a motion to suppress the seized drugs, arguing that

the search violated article I, section 7 of the Tennessee Constitution and the Fourth

Amendment to the United States Constitution. The Defendant first argued that the initial

stop of his vehicle was not supported by either reasonable suspicion or probable cause and

further contended that even if there was a proper basis for an investigatory stop, the officer

had unreasonably prolonged its duration by asking the Defendant to step outside of his

vehicle.2

At the hearing on the motion, Officer Baker, the only witness to appear, testified that

he was following the Defendant’s vehicle on Gallatin Road when the Defendant stopped

suddenly in a turn lane at a red light, having driven completely beyond the line on the street

1

An officer who observes a misdemeanor of this nature “shall issue a traffic citation to the person

in lieu of arrest, continued custody and the taking of the arrested person before a magistrate.” Tenn. Code

Ann. § 55-10-207(a)(1) (2008).

2

“Routine traffic stops” have been generally addressed as follows:

Given that police can easily come by a factual basis for a traffic stop, that such stops

are often motivated by drug-enforcement purposes, and that there exists virtually no basis

for questioning the initiation of such a stop because of its pretextual or arbitrary nature, it

is apparent that the permissible dimensions of a lawful traffic stop are matters of some

importance.

Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough

Fourth Amendment, 102 Mich. L. Rev. 1843, 1862 (2004).

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marking the proper stopping point. When the Defendant then turned right without signaling,

Officer Baker initiated the stop. He stated that after a brief conversation, he took the

Defendant’s license and registration, returned to his police vehicle, and wrote a citation for

the failure to properly stop and the failure to use a turn signal. Officer Baker testified that

when he returned to the Defendant’s car, he asked him to step outside, explaining that “I

wanted to get a feel for him[,] . . . to see if maybe he had been drinking to get a perspective

of him.”

On cross-examination by the defense, Officer Baker acknowledged that he did not

detect any alcohol on the Defendant’s breath, did not suspect that the Defendant had drugs

at the time of the stop, and had no indication that the Defendant might be armed. He

described the initial encounter as “nothing out of the ordinary.” The officer further testified

that when he “went back to the vehicle to ask [the Defendant] to step out, part of that was to

speak with him and to get him to sign the ticket.” When, however, the Defendant got out of

his car and Officer Baker saw the “clear plastic bag with a white powder substance,” his

“point of emphasis transferred to that bag” and, in consequence, he did not deliver the traffic

citation until the Defendant was booked for the drug offense. Upon continued questioning

by defense counsel, Officer Baker further explained his rationale for directing the Defendant

out of his car:

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? Mr. Donaldson, 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 [seen]

nothing out of the ordinary?

A: Just it was part of him getting out of—part of him signing the citation as

well.

Defense counsel then asked the officer whether his police training was “to keep people

within the vehicle so you can keep them under control.” Officer Baker disagreed, responding

that there was a safety concern:

There’s a better chance of it getting out of control [if the person stays in the

car] because . . . everything inside the vehicle is an unknown. They could have

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a gun sitting in the floorboard waiting for us to walk back up. If I get them out

of the vehicle, I can see their hands . . . .

When questioned by the trial judge, Officer Baker acknowledged that he gave back the

driver’s license to the Defendant “[w]hen he stepped out of the vehicle.” He clarified that

he had first asked the Defendant to step outside of the vehicle before returning the license.

In its memorandum opinion, the trial court first determined that Officer Baker had a

reasonable basis to stop the Defendant because of his failure to properly signal for a right

turn. While recognizing that police officers may routinely ask drivers to exit the vehicle as

a part of a properly based investigatory stop, the trial court concluded that the stop had ended

at the point that Officer Baker approached the vehicle to deliver the traffic citation and return

the driver’s license. Because the officer had been “unable to articulate any reason as to why

further observation . . . was necessary,” the trial court ruled that “[t]he request . . . to exit the

vehicle was not reasonably related to the stop” and granted the motion to suppress.

Afterward, the State filed a motion to reconsider the order of suppression. The trial

court, some six weeks after the hearing, upheld its original ruling and also included the

following statement in its order of denial: “This . . . ruling would be different had Officer

Baker made the request to exit the vehicle prior to returning the driver’s license.” The trial

court concluded, however, that Officer Baker had returned the Defendant’s license “either

immediately before or as he asked Defendant to step out of the vehicle,” and that “[t]he

citation had been already . . . completed and only required [his] signature.”

On appeal by the State, the Court of Criminal Appeals affirmed, concluding that the

trial court had implicitly ruled that the officer’s explanation for requiring the Defendant to

step out of the vehicle was not credible and holding that even though an officer may require

a driver to exit a vehicle during a traffic stop, the authority had to be based upon a legitimate

concern for safety. State v. Donaldson, No. M2010-00690-CCA-R3-CD, 2011 WL 4340854,

at *11 (Tenn. Crim. App. Sept. 15, 2011). The Court of Criminal Appeals relied, in part,

upon a footnote in the majority opinion of Pennsylvania v. Mimms, 434 U.S. 106 (1977) and

interpreted its language to require an examination of the circumstances in each case, rather

than providing “carte blanche authority” to routinely order drivers out of the vehicles after

a traffic stop:

[W]e 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

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searches and seizures.

Donaldson, 2011 WL 4340854, at *8 (citation omitted) (quoting Mimms, 434 U.S. at 111

n.6).

In this appeal, the State argues that because Officer Baker made a valid traffic stop,

which was still in progress at the time the Defendant was directed to step out of his vehicle,

the trial court erred by suppressing the evidence. In response, the Defendant submits that this

is “not a Mimms case,” but is instead an illustration of a “police tactic” used after a lawful

investigatory stop involving an unconstitutional search and seizure and a prolonged, unlawful

detention. The Defendant contends that Mimms does not always provide the police with the

authority to require a driver to step out of a vehicle after a traffic stop based upon either

reasonable suspicion or probable cause. He submits that because there existed no

relationship between Officer Baker’s directive and his personal safety, the ruling of the trial

court should be upheld.

Standard of Review

The standard of review applicable to suppression issues is well established. When the

trial court makes findings of fact after a suppression hearing, its conclusions are binding

upon this Court unless the evidence in the record preponderates against them. State v. Odom,

928 S.W.2d 18, 23 (Tenn. 1996). As a general rule, “[q]uestions of credibility of the

witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence

are matters entrusted to the trial judge as the trier of fact.” Id. It is only when the findings

of fact are based entirely on evidence that does not involve issues of witness credibility that

an appellate court conducts a de novo review. State v. Binette, 33 S.W.3d 215, 217 (Tenn.

2000). Appellate review of a trial court’s application of law to the facts is de novo, with no

presumption of correctness. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001) (citing

State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999)).

Analysis

Our state and federal constitutions offer protection from unreasonable searches and

seizures. The general rule is that a warrantless search or seizure is presumed unreasonable

and any evidence discovered is subject to suppression. See U.S. Const. amend. IV (“The

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . . .”); Tenn. Const. art. I, § 7

(providing that “the people shall be secure in their persons, houses, papers and possessions,

from unreasonable searches and seizures”). “[S]earches conducted outside the judicial

process, without prior approval by judge or magistrate, are per se unreasonable under the

Fourth Amendment—subject only to a few specifically established and well-delineated

exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); see also State v. Bridges, 963

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S.W.2d 487, 490 (Tenn. 1997). This Court has recognized three categories of police

interventions with private citizens: (1) a full scale arrest, which requires probable cause; (2)

a brief investigatory detention, requiring reasonable suspicion of wrong-doing; and (3) a brief

police-citizen encounter, requiring no objective justification. State v. Daniel, 12 S.W.3d 420,

424 (Tenn. 2000). Constitutional protections apply “to all seizures of the person, including

seizures that involve only a brief detention short of traditional arrest.” United States v.

Brignoni-Ponce, 422 U.S. 873, 878 (1975) (citing Davis v. Mississippi, 394 U.S. 721

(1969)); see also Terry v. Ohio, 392 U.S. 1, 21 (1968) (holding that an investigatory stop

must be supported by “specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion”). An automobile stop

constitutes a “seizure” within the meaning of both the Fourth Amendment to the United

States Constitution and article I, section 7 of the Tennessee Constitution. See Mich. Dep’t

of State Police v. Sitz, 496 U.S. 444, 450 (1990); Delaware v. Prouse, 440 U.S. 648, 653

(1979); State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).3 Although the State bears the

burden of proof when a search or seizure is conducted without a warrant, Yeargan, 958

S.W.2d at 629, the stop of a vehicle is reasonable when the police have proper basis to

believe a traffic violation has occurred. State v. Berrios, 235 S.W.3d 99, 105 (Tenn. 2007).4

Initially, as to any suggestion that Officer Baker may have used the traffic stop as a

“police tactic” to investigate other possible offenses for which no basis existed, there is no

absolute prohibition against a pretextual stop so long as the stop has legitimate

underpinnings. In Whren v. United States, 517 U.S. 806, 813 (1996), the United States

Supreme Court rejected the argument that the “reasonableness of traffic stops depends on the

actual motivations of the individual officers involved,” ruling instead that a valid stop based

on a traffic violation was permissible regardless of any pretextual motivation of the officer.

In State v. Vineyard, 958 S.W.2d 730, 736 (Tenn. 1997), this Court concluded that in the

context of traffic stops, the protections afforded by article I, section 7 of the Tennessee

Constitution were coextensive with the protections afforded by the Fourth Amendment as

defined in Whren. The stop of an automobile is, therefore, constitutionally permissible under

both the Tennessee and federal constitutions when the police have either reasonable

3

“The correct spelling of the defendant’s name is ‘Pulley’; however, it is cited by West Publishing

Company as ‘Pully.’” State v. Yeargan, 958 S.W.2d 626, 635 n.5 (Tenn. 1997) (Reid, J., concurring).

4

Although there is no federal constitutional prohibition against an arrest for a minor traffic offense,

see Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001), in State v. Walker, 12 S.W.3d 460 (Tenn.

2000), this Court concluded that Tennessee Code Annotated section 40-7-118 created “a presumptive right

to be cited and released for the commission of a misdemeanor.” Id. at 464. A full custodial arrest for a

misdemeanor is permitted only when one of the statutory exceptions is met. See Tenn. Code Ann. § 55-10-

207(f) (2008).

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suspicion or probable cause to believe that a traffic violation has occurred, regardless of any

ulterior motive of the arresting officer. Vineyard, 958 S.W.2d at 734; see also Pulley, 863

S.W.2d at 30.

It is undisputed that Officer Baker lawfully detained the Defendant for a traffic

violation. In Mimms, the United States Supreme Court held that, for officer safety reasons,

a lawful traffic stop authorizes officers, as a matter of course, to require drivers to exit their

vehicles. 434 U.S. at 111 n.6; see also State v. Hanning, 296 S.W.3d 44, 54 (Tenn. 2009)

(citing Mimms for the proposition 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”). In Mimms, an officer

who made a traffic stop, but was otherwise without any articulable basis for suspicion of

additional wrongdoing, ordered the defendant out of his car. After balancing the public

interests against the right of the individual to be free of arbitrary interference by the police,

the Supreme Court concluded that officer safety trumped the “de minimis” intrusion on the

liberty of the individual and upheld the validity of the search. 434 U.S. at 111.5 More

recently, the Court of Appeals for the District of Columbia observed that “the clarity and

force of the bright-line rule set forth in Mimms are sometimes under-appreciated, if not

ignored entirely.” Bullock, 510 F.3d at 344; see also State v. McConaughy, No. W2008-

01645-CCA-R3-CD, 2010 WL 681361, at *8 (Tenn. Crim. App. Feb. 26, 2010) (observing

that officers may generally direct a motorist to exit a vehicle in order to sign a citation). A

majority of the courts that have addressed the issue, including this Court, see Berrios, 235

S.W.3d at 107, have endorsed the ruling in Mimms.6 We conclude, therefore, that Officer

Baker was entitled, as a matter of course, to remove the Defendant from the vehicle for a

short period of time after making the traffic stop. While Officer Baker expressed a concern

5

“According to one study, approximately 30% of police shootings occurred when a police officer

approached a suspect seated in an automobile.” Adams v. Williams, 407 U.S. 143, 148 n.3 (1972). In a 2006

publication, the United States Department of Justice reported that 6,000 police officers are assaulted each

year, and ten are killed. United States v. Bullock, 510 F.3d 342, 349 (D.C. Cir. 2007).

6

See, e.g., State v. Abner, 889 So. 2d 52, 53-54 (Ala. Crim. App. 2004); People v. Super. Ct.

(Galbreath), 164 Cal. Rptr. 116, 117 (Ct. App. 1980); State v. Dukes, 547 A.2d 10, 22-23 (Conn. 1988);

Salmeron v. State, 632 S.E.2d 645, 646 (Ga. 2006); State v. Askerooth, 681 N.W.2d 353, 367 (Minn. 2004);

State v. Lozada, 748 N.E.2d 520, 527 (Ohio 2001); Commonwealth v. Reppert, 2002 PA Super 383 ¶ 2, 814

A.2d 1196, 1210; Clark v. State, No. 12-07-00396-CR, 2009 WL 223416, at *2 (Tex. Ct. App. Jan. 30, 2009)

(not designated for publication); McCain v. Commonwealth, 659 S.E.2d 512, 516 (Va. 2008).

Our research indicates that only three states have explicitly rejected the Mimms rationale on state

constitutional grounds and concluded that an officer cannot order a driver to exit the vehicle after a traffic

stop without articulating some degree of objective suspicion. See State v. Kim, 711 P.2d 1291, 1294 (Haw.

1985); Commonwealth v. Gonsalves, 711 N.E.2d 108, 112 (Mass. 1999); State v. Sprague, 824 A.2d 539,

546 (Vt. 2003).

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for safety only after indicating in his testimony that he routinely asked drivers stopped for

traffic violations to step out of the car and did so in this instance to determine if alcohol

might be involved, this does not negate the validity of his action.

Although the ruling in Mimms authorized Officer Baker to direct the Defendant to

exit his vehicle after the stop, other circumstances could render the directive impermissible.

As the trial court observed, the duration of an investigative detention should last no longer

than necessary and should generally end when there is no further reason to control the scene

or the driver of the vehicle. See Arizona v. Johnson, 555 U.S. 323, 333 (2009); see also

Brendlin v. California, 551 U.S. 249, 258 (2007). “Similarly, the investigative methods

employed should be the least intrusive means reasonably available to verify or dispel the

officer’s suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500 (1983).

This Court adopted the ruling in Royer in State v. Cox, 171 S.W.3d 174 (Tenn. 2005):

The duration of [a traffic] stop . . . 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).7

After being stopped for a traffic violation, however, a driver should expect “to spend

a short period of time answering questions and waiting while the officer checks his license

and registration, that he may then be given a citation, but that in the end he most likely will

be allowed to continue on his way.” Berkemer v. McCarty, 468 U.S. 420, 437 (1984); cf.

Muehler, 544 U.S. at 101 (finding that because questioning of the defendant did not prolong

the stop, no independent Fourth Amendment justification was needed for the questioning

based upon the legitimacy of the initial stop). “[T]he permissibility of a particular law

enforcement practice is judged by balancing its intrusion on the individual’s Fourth

Amendment interests against its promotion of legitimate governmental interests.” Prouse,

440 U.S. at 654. Mimms and its progeny permit the intrusion if the officer merely removes

7

Inquiries into matters unrelated to a traffic stop, however, do not convert the encounter into an

unlawful seizure, so long as those inquires do not measurably extend the duration of the stop. Muehler v.

Mena, 544 U.S. 93, 100-01 (2005); see also State v. Taylor, No. E2010-01817-CCA-R3-CD, 2011 WL

2120087, at *8-9 (Tenn. Crim. App. May 20, 2011) (discussing Muehler and determining that officer’s

actions in asking the defendant questions unrelated to the traffic stop had not “unreasonably exceeded the

scope of the traffic stop”).

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a defendant from his vehicle absent undue delay. The question, however, of where a de

minimis intrusion ends and an undue delay begins is necessarily a fact-specific inquiry. See

United States v. Everett, 601 F.3d 484, 493-94 (6th Cir. 2010) (recognizing that “a fact-

bound, context-dependent inquiry” must be conducted in each case to determine whether the

duration of the stop was unreasonable). It is impossible to select “an arbitrary quantity of

time and proclaim that any prolongation less than that amount is categorically ‘de minimis’

– as convenient as such a rule might be.” Everett, 601 F.3d at 493. A number of cases,8

including our Berrios opinion, however, illuminate the distinction. There, the officer not

only stopped the defendant for speeding and frisked him for weapons but also placed the

defendant in the back seat of a locked patrol car before checking his driver’s license and

vehicle registration. Because the evidence established that the officer had done so to test the

anxiety level of the defendant as an investigative technique, we held that the extended

detention, under those particular circumstances, did not qualify as “de minimis.” Berrios,

235 S.W.3d at 107. The case before us is distinguishable on the facts. Officer Baker

described the stop of the Defendant as “normal.” Nothing in the record indicates that it

lasted more than five minutes. Unlike the circumstances in Berrios, the intrusion was

minimal.

8

See, e.g., Taylor, 2011 WL 2120087, at *9-10 (finding that a stop, in which the defendant was

asked several questions, asked to get out of the car, and which lasted around eighteen minutes, had not

“unreasonably exceeded the scope of the traffic stop”); McConaughy, 2010 WL 681361, at *7 (holding that

a citation process that lasted around thirty minutes and during which the officer asked the defendant three

questions about narcotics and weapons did not exceed the scope of the traffic stop); State v. Fernandez, No.

E2006-01781-CCA-R3-CD, 2007 WL 3072910, at *6 (Tenn. Crim. App. Oct. 23, 2007) (holding that one

minute delay between the initial stop of the defendant and the officer’s question regarding whether the

defendant had any illegal substances and his request to search the defendant’s car “was sufficiently

contemporaneous with the issuance of the citation, such that there was no appreciable delay, and certainly

no unreasonable delay”); see also, e.g., United States v. Chaney, 584 F.3d 20, 26 (1st Cir. 2009) (holding that

“the delay of approximately two minutes that occurred prior to [the police officer] developing reasonable

suspicion to further investigate [the defendant’s] identity was de minimis and did not unreasonably extend

the duration of the traffic stop”); United States v. Peralez, 526 F.3d 1115, 1119-20 (8th Cir. 2008) (finding

that the duration of the stop was unreasonably extended where the officer admitted that, for thirteen minutes

of the sixteen minute stop, he asked the defendant questions that were unrelated to the traffic violation);

Loper v. State, 8 A.3d 1169, 1172-73 (Del. 2010) (concluding that the stop, during which the officer asked

the defendant for identification and ran a background check, “did not exceed the permissible scope of a

routine traffic stop”); Bucalo v. Commonwealth, No. 2010-CA-000176-MR, 2012 WL 246245, at *5-7 (Ky.

Ct. App. Jan. 27, 2012) (holding that a traffic stop, which lasted 105 minutes from the time of the initial stop

until the defendant was arrested on drug-related charges, was unreasonable because “[t]he officers lacked

reasonable suspicion to prolong the stop for purposes of conducting a drug dog sniff because there was

insufficient evidence that [the defendant] was engaged in drug-related activity”); State v. Mason, 919 A.2d

752, 758 (Md. Ct. Spec. App. 2007) (ruling that a twenty-five minute delay following initial traffic stop for

a narcotics-sniffing dog to arrive unreasonably extended the prolongation of the detention).

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Officer Baker’s request to have the Defendant exit his vehicle could also have been

impermissible if he had asked him to do so after the traffic stop had been concluded. As

indicated in the order upholding its original order of suppression, the trial court observed that

its “ruling would be different had Officer Baker made the request to exit the vehicle prior to

returning the driver’s license.” The record establishes that Officer Baker, the only witness

at the hearing, testified that he had not, in fact, returned the driver’s license before asking the

Defendant to step outside the vehicle, and that upon further inquiry, the trial court confirmed

the sequence of events as related by the officer, so stating in the initial order of suppression.

In that regard, therefore, the evidence preponderates against the very finding upon which the

trial court based its denial of the motion to reconsider. See State v. Brown, 294 S.W.3d 553,

561 (Tenn. 2009). The Court of Criminal Appeals, when addressing the issue, described as

“implicit” in the trial court’s ruling that the testimony of the officer was not credible.

Donaldson, 2011 WL 4340854, at *11. We do not find that to be the case. Neither the

original order of suppression nor the order denying the State’s motion to reconsider questions

the credibility of the officer. As to the pivotal facts, the trial court made the following

assessment in the order granting the motion to suppress:

Officer Baker wrote a citation for failure to stop and failure to use a[]turn

signal and then returned to Defendant’s vehicle. At that point, Officer Baker

requested Defendant to step out of his vehicle so he could observe [his]

demeanor and see if he had been drinking. Officer Baker testified he was

planning to give Defendant the citation at that point, but when Defendant

stepped out of the vehicle, Officer Baker observed a clear plastic bag

containing white powder on the floorboard on the driver[’]s side.

The trial court’s recollection on the motion to reconsider that Officer Baker had testified that

he had completed the citation ticket and returned the driver’s license prior to the Defendant

exiting the vehicle stands in contradiction, therefore, to the findings in the original order.

Even if Officer Baker had returned the Defendant’s driver’s license prior to requesting

that he exit the vehicle, however, the traffic stop would not have been concluded. Our courts

have previously held that “[w]hen a police officer issues a traffic citation or warning and

returns a driver’s license and registration, a traffic stop ceases to be a seizure . . . and

becomes a consensual encounter . . . .” State v. McCrary, 45 S.W.3d 36, 42 (Tenn. Crim.

App. 2000) (emphasis added).9 Under the facts as construed in either of the trial court’s

9

Furthermore, a person stopped for a traffic violation and issued a citation is required by statute to

sign the document. See Tenn. Code Ann. § 55-10-207(b) (Supp. 2007) (stating that a person receiving a

traffic citation “shall signify the acceptance of the citation and the agreement to appear in court as directed

(continued...)

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orders, both requirements had not been satisfied. The traffic stop, therefore, had not been

completed at the time the Defendant was asked to step out of his vehicle.

In summary, we are unable to distinguish the facts in this case from those in Mimms.

The balance of the competing interests favors the safety of the officer over the minimal

intrusion to an individual directed to step outside of his vehicle after a valid traffic stop. This

rationale not only applies under the Fourth Amendment to the United States Constitution but

also under article 1, section 7 of the Tennessee Constitution.10 Similar to our holding in

Vineyard that article 1, section 7 should be interpreted in the same manner as the comparable

federal provision in Whren, our view is that the federal and state constitutional provisions

apply coextensively to the circumstances we address today.

Conclusion

Because an officer making a valid traffic stop may, for reasons of safety, routinely

order a defendant out of a vehicle and because the trial court erroneously concluded that the

officer had concluded the stop by handing the Defendant his driver’s license before removing

him from the car, the order of suppression is reversed. The cause is, therefore, remanded to

the trial court for trial. Costs are assessed against the Defendant and his surety, for which

execution may issue if necessary.

_________________________________

GARY R. WADE, JUSTICE

9

(...continued)

by signing the citation”).

10

This Court has previously held that under certain circumstances, our state constitution offers more

protection than the corresponding provisions of the Fourth Amendment. See, e.g., State v. Jacumin, 778

S.W.2d 430, 436 (Tenn. 1989); State v. Lakin, 588 S.W.2d 544, 549 (Tenn. 1979). In this instance, we see

no reason to construe our constitution in a manner different from the federal constitution.

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