STATE OF FLORIDA, APPELLANT,
v.
MICHAEL BENNY VERA, APPELLEE
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Florida appeals a suppression order in a firearm and drug possession case. The court reverses, holding that an officer's stop for a bike light violation was nonpretextual, the safety inquiry was proper, and the defendant's suspicious body language and visible bulge in his pocket provided sufficient grounds to search and discover the concealed weapon.
The officer effected a lawful, nonpretextual stop based on the bicycle headlight violation. During the stop, the officer could permissibly inquire about weapons for safety reasons. The defendant's suspicious body language and actions provided founded suspicion of a concealed weapon, permitting the officer to investigate by viewing the suspicious bulge in the pocket. The plain view of the apparent bulge provided probable cause to search the pocket and confirm the gun.
[1] A traffic stop for a bicycle headlight violation is a valid basis for a lawful investigatory stop.
[2] An officer may inquire whether a person stopped is armed, based on concerns for officer safety.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Officer Sutter effected a good, nonpretextual stop because of the headlight violation.”
Establishes that the initial stop was lawful and not pretextual even though the officer did not issue a citation.
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Join FLexlaw to unlock all legal intelligenceOfficer Sutter stopped defendant Michael Vera around 1 a.m. on a mixed residential-commercial street in Temple Terrace for riding a bicycle without a …
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DANAHY, Acting Chief Judge.
The state challenges an order of suppression entered in a prosecution for carrying a concealed firearm and possession of contraband. We reverse.
The events giving rise to the charges in this case began around 1 a.m. on a February morning in 1995 on a mixed residential and commercial street in Temple Terrace. This area has more criminal activity in it than other areas of the city. Officer Sutter was patrolling the area when he stopped the defendant because he was riding his bike with no headlight. Officer Sutter testified that the City of Temple Terrace has an ordinance requiring that bikes ridden at night be equipped with operating headlights and reflective badges on the wheels. The officer had previously stopped many people for this infraction but usually only gave the violators a verbal warning. He did the same in this ease and did not issue a citation to the defen dant. After warning the defendant about getting a headlight, the officer asked him if he had any guns, knives, or weapons on him. It is the officer’s usual procedure to ask this question of all persons he stops on the street. The defendant touched his back pocket, looked down, would not return his gaze to the officer, and answered in the negative. His body language and increased nervousness communicated to the officer that the defendant was being untruthful.1
Having his suspicions aroused, the officer walked around behind the defendant and saw a bulge in his right rear pocket which appeared to be a weapon. The officer touched the pocket and confirmed it was a gun. He secured the defendant and pulled out a handgun from that pocket. The officer arrested the defendant and pursuant to the arrest searched him further, finding marijuana. Based on this evidence the trial court ordered suppression citing Kirk v. State, 493 So. 2d 59 (Fla. 2d DCA 1986). In this the trial court erred.
We find that Kirk is distinguishable from the case before us in much the same way State v. Banfield, 614 So. 2d 551 (Fla. 2d DCA), cert, denied, 626 So. 2d 203 (Fla.1993), distinguished it. In Kirk no citation was issued, but there was no evidence that it was police practice to issue bike light citations; moreover, the defendant in Kirk had also run a stop sign. Banfield, 614 So. 2d at 553. Distinguishing Kirk, and agreeing with Ban-field, we find that Officer Sutter effected a good, nonpretextual stop because of the headlight violation. See Kehoe v. State, 521 So. 2d 1094 (Fla.1988). During the stop in the ease before us, it was permissible for the officer to inquire, based on concerns for his own safety, whether the defendant was armed.2 The defendant’s actions provided Officer Sutter with founded suspicion that he was concealing a weapon. Thus it was permissible for the officer to further investigate and walk around the defendant to see, in plain view, a suspicious circumstance (the bulge in the rear pocket that the defendant had touched). This plain viewing of what appeared to be a gun bulging out the pocket provided probable cause to search the defendant by feeling and searching his pocket to confirm that it was a gun.
The trial court should have denied the defendant’s motion to suppress. Accordingly, we reverse the order of suppression and remand for further proceedings.
CAMPBELL and FRANK, JJ., concur. . Officer Sutter testified that he had learned to look for these tell-tale warning signs of body language from police training courses. His prior experiences had confirmed this knowledge.
. It is not determinative whether the stop had ended before this question was asked, as the defendant argues. The officer could have asked this question even if the stop had ended and the two had merely been engaged in a citizen encounter. See Bostick v. State, 593 So. 2d 494 (Fla. 1992).
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State v. Kindle, 782 So. 2d 971 (Fla. 5th DCA 2001)…the defendant argues. The officer could have asked this question even if the stop had ended and the two had merely been engaged in a citizen encounter. See Bostick v. State, 593 So. 2d 494 (Fla.1992). [*976] Id. at 1092 n. 2; see also State v. Vera, 666 So. 2d 576 (Fla. 2d DCA 1996). In the instant appeal, the trial court found that the traffic stop effectuated by Rhodes was lawful. After Rhodes issued the citation, the traffic stop turned into a citizen encounter. Thus pursuant to Cro-matie, there was no re…
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State v. Cromatie, 668 So. 2d 1075 (Fla. 2d DCA 1996)…ression. [*1077] During a valid traffic stop, or even if a valid traffic stop has had its lawful function completed and turns into a citizen encounter, there is no reason a law enforcement officer cannot ask for consent to search. Cf. State v. Vera, 666 So. 2d 576, n. 2 (Fla. 2d DCA 1996) (citing Bostick v. State, 593 So. 2d 494 (Fla.1992)). Once a police officer obtains a valid consent to search, certain procedures are reasonable given the safety concerns of officers. Cf. Michigan v. Summers, 452 U.S. 692, 1…
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State v. Juvan Ashley Nichols, 52 So. 3d 793 (Fla. 5th DCA 2010)…)); see also Dobson v. State, 737 So. 2d 590, 592 (Fla. 4th DCA 1999) (holding that the officer was justified in conducting a pat-down search when he observed a bulge in the defendant’s pocket and thought it could have been a weapon); State v. Vera, 666 So. 2d 576, 577 (Fla. 2d DCA 1996) (reversing and remanding trial court’s order granting the defendant’s motion to suppress and holding that the officer had probable cause to search the defendant after a valid stop and viewing a bulge in the defendant’s back p…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kehoe v. State, 521 So. 2d 1094 (Fla. 1988)
- Bostick v. State, 593 So. 2d 494 (Fla. 1992)
- State v. Banfield, 614 So. 2d 551 (Fla. 2d DCA 1993)
- Kirk v. State, 493 So. 2d 59 (Fla. 2d DCA 1986)