HENRY MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1986-07-11
No. 85-650
DANAHY, C.J., and HALL, J., concur.
494 So. 2d 498 Florida District Court of Appeal, Second District (1986) Negative Treatment
Cited by 16 cases

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

Synopsis

Henry Mitchell was convicted of carrying a concealed firearm (a derringer) discovered during a search incident to arrest. The Florida appellate court reversed, holding that the initial firearm observed by the officer was not legally concealed, so the arrest lacked probable cause, making the subsequent search and seizure of the derringer illegal.


Holding

The court held that the carbine was not a concealed firearm because it was visible from ordinary observation without the officer changing position or bending down, and thus did not furnish a legal basis for arrest. Consequently, the search incident to arrest was illegal, and the derringer, as fruit of that illegal search, should have been suppressed.


Headnotes

[1] A warrantless arrest for carrying a concealed firearm requires reasonable grounds or probable cause to believe the person is carrying a concealed weapon.

[2] A firearm is not concealed if it is visible through ordinary observation by a person standing near the individual or beside a vehicle in which the individual is seated.

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Key Quotes

“To be concealed, a firearm must be on or about the person and hidden from the ordinary sight of another person.”

Establishes the legal definition of concealed firearm under Florida law.

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Facts & Procedural History

On March 26, 1984, at 2:00 a.m., Officer Palmieri observed Mitchell's parked car near a closed bar. When questioned, Mitchell explained he was waiting…

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Opinion of the Court
SCHEB, Judge.

SCHEB, Judge.

The state charged defendant Henry Mitchell with carrying a concealed firearm, a violation of section 790.01(2), Florida Statutes (1983). He moved to suppress the firearm, a derringer, as being the fruit of an illegal warrantless search. The trial court denied his motion and a jury subsequently found him guilty of the charge. The court adjudicated him guilty and placed him on two years’ probation. In this appeal, defendant contends that the court erred in denying his motion to suppress. We agree.

At the suppression hearing, only Officer Michael Palmieri testified. On March 26, 1984, at about 2:00 a.m., Officer Palmieri and his partner, Officer Yost, saw defendant’s car parked near a closed bar. The officers approached the car and asked defendant to roll down the window. Defendant complied and, when questioned, explained that he was waiting to pick up a female acquaintance from the bar. While speaking to defendant, Palmieri looked through the open car window. In the back seat of the car he saw six inches of the butt of a gun sticking out from behind the front passenger seat. Palmieri experienced some difficulty seeing the gun because its woodgrain color blended with the brown leather seats.

Palmieri then asked defendant to step out of the car. Defendant complied, and Palmieri retrieved the gun, a loaded, semiautomatic carbine which was lying at a ninety degree angle with the barrel facing down to the floorboard. The officers arrested defendant for carrying a concealed firearm. After that, Palmieri searched the immediate area in the car where defendant had been sitting. This search, incident to defendant’s arrest, yielded an unloaded two-shot derringer positioned between the driver’s seat and the console. It was this derringer which was the basis of the state’s charge and the defendant’s conviction.

Officers who have reasonable grounds or probable cause to believe that a person is carrying a concealed weapon may make a warrantless arrest. § 790.02, Fla. Stat. (1983). The officers may then make a search incident to that arrest. See, e.g., State v. Kemp, 429 So. 2d 822 (Fla. 2d DCA 1983). Thus, the propriety of defendant’s conviction hinges on whether the officers had reasonable grounds or probable cause to seize the carbine. If so, then the subsequent seizure of the derringer in the search incident to arrest would be proper. To be concealed, a firearm must be on or about the person and hidden from the ordinary sight of another person. § 790.001(2), Fla.Stat. (1983); Ensor v. State, 403 So. 2d 349, 354 (Fla.1981). “On or about the person” means physically on or readily accessible to the person. Ensor. “Ordinary sight of another person” means casual and ordinary observation in the normal association of life. Ensor. Thus, “[t]he critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm.” Ensor, 403 So. 2d at 355.

Officer Palmieri observed the carbine through a legally permissive “open view.” Ensor, 403 So. 2d 352-3, 355. Yet, unlike the officers in Ensor, he recognized the butt of the carbine as being a part of a firearm without changing his position or bending down to look under a car seat to find it. Id. at 355. Moreover, the carbine was not partially covered by a mat. Id. Thus, it did not qualify as hidden from the ordinary sight of the average person. Therefore, it was not a concealed firearm.

Since the carbine was not concealed, it did not furnish the officers a basis to arrest defendant. Consequently, the search incident to defendant’s arrest, which revealed the derringer, was illegal. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Kane v. State, 358 So. 2d 53 (Fla. 2d DCA), cert. denied, 364 So. 2d 892 (Fla.1978). Because the derringer was the fruit of an illegal search, the trial court erred in denying defendant’s motion to suppress. See Wong Sun; Kane.

Accordingly, we vacate defendant’s conviction and his placement on probation for carrying a concealed firearm.

DANAHY, C.J., and HALL, J., concur.


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Citator

Cited By

  • Dorelus v. State, 747 So. 2d 368 (Fla. 1999)
    …, other cases are in apparent conflict on this issue. Compare Goodman v. State, 689 So. 2d 428 (Fla. 1st DCA 1997), and State v. Puig, 551 So. 2d 552 (Fla. 3d DCA 1989), with Cope v. State, 523 So. 2d 1270 (Fla. 5th DCA 1988), and Mitchell v. State, 494 So. 2d 498 (Fla. 2d DCA 1986). . This statement comes from the sworn motion to dismiss quoting the arresting officer’s probable cause affidavit for arrest. The officer did not testify below. . Following the same reasoning, the Fourth District also reversed t…
  • Cope v. State, 523 So. 2d 1270 (Fla. 5th DCA 1988)
    …defendant’s pocket. The Second District held that these facts gave rise to a jury question on the issue of concealment. Such facts are quite different from the instant testimony of Officers Appleby and Cutcher. More recently, in Mitchell v. State, 494 So. 2d 498 (Fla. 2d DCA 1986), which is factually indistinguishable from the instant case, the Second District held, as a matter of law, that a firearm was not concealed where the arresting officer testified that he looked through an open car window and saw si…
  • State v. Solomon Hardy, 610 So. 2d 38 (Fla. 5th DCA 1992)
    …he officer in Ensor, the officer in Cope instantly recognized a blue steel pistol with wood-grain handle grips upon a “casual observation,” and thus, the pistol was not “concealed” under the ordinary meaning of that word. See also Mitchell v. State, 494 So. 2d 498, 500 (Fla. 2d DCA 1986) (holding that the firearm, which was behind the driver’s seat with the butt extending up about six inches past the seat and the barrel pointing straight down to the floorboard, was not concealed or hidden from the ordinary si…

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