STATE OF FLORIDA, APPELLANT,
v.
CHARLES BRYANT, APPELLEE
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The court held that a pistol observed in plain view in the car of a previously convicted felon is contraband and subject to seizure, even without an arrest.
[1] A pistol observed in plain view on the front seat of a vehicle is subject to seizure if the officer has probable cause to believe it is contraband in the hands of the occ…
[2] An article may be considered contraband if its possession is unlawful due to its nature or the circumstances under which it is possessed.
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Join FLexlaw to unlock all legal intelligenceA deputy sheriff observed a pistol in plain view on the front seat of a car occupied by the defendant, who was a previously convicted felon. The deput…
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The state appeals pursuant to § 924.071, F.S.1969, F.S.A., from an interlocutory order granting defendant Bryant’s motion to suppress. We reverse.
Bryant is charged by information with felonious possession of a firearm.1 On the night in question deputy sheriff Casto was checking an establishment which, four weeks earlier, had been the scene of an unsolved burglary. He saw two parked vehicles in the parking lot. As Casto approached, one of the vehicles started to move but he stopped it and asked the sole occupant, Bryant, to get out and place his hands on the fender. He told the driver of the other vehicle, a woman, to place her hands on the dashboard. As he came back to ask Bryant for his driver’s license he saw a pistol in plain view on the front seat of Bryant’s car. He removed the pistol and checked out Bryant’s identification on the radio. The dispatcher told him that he thought the man was a convicted felon. He returned and questioned Bryant and Bryant confirmed that he had been convicted as a felon. Deputy Casto then called for his sergeant who came over and said that he, too, thought Bryant was a convicted felon. Notwithstanding, deputy Casto retained the gun but released both Bryant and the woman.
On the following morning deputy Casto made an investigation through the Florida Parole Commission. The investigation revealed that Bryant was in fact a previously convicted felon, whereupon deputy Casto secured an arrest warrant and executed it some days later charging Bryant with felonious possession as aforesaid.
Neither the stopping and questioning of Bryant nor the deputy’s observation and *346initial manucaption of the pistol is questioned. Rather, Bryant argues first that the pistol was not “contraband,” thus not subject to seizure of itself, and secondly, that since he was not arrested the seizure could not be justified as incidental to an arrest. We reject these arguments.
As to contraband, we initially perceive “contraband” to be any substance, article or thing the making, possession or trafficking of which is unlawful. Furthermore, such substance, article or thing may be “contraband” by its very nature, such as counterfeit currency, narcotic drugs or moonshine whiskey;- while other articles or things are “contraband” depending upon the circumstances under which they are made, possessed or -circulated. This latter category would include stolen goods, bur-glarious tools and, we think, the pistol in this case. That is to say, for purposes of disposing of this appeal, we can say that the pistol herein was possessed by one admittedly previously convicted as a felon, and thus feloniously or wrongfully possessed.2 In either category of “contraband,” however, there is no right of property therein as to the one in wrongful possession or control thereof.3 It follows, therefore, that concerning the naked seizure of the pistol in the first instance, Bryant had no standing to avoid its taking nor compel its return.4
Moreover, he can’t take refuge under the constitutional provisions relating to searches and seizures since there was no intrusional “search” within the contemplation thereof. As noted, the pistol was in plain sight of the deputy who, undisputedly, had a right to be where he was and to do what he was doing.5 Additionally, the deputy had more than probable cause to believe that the pistol was “contraband” in the hands of Bryant, that it was an instrument of further perpetration of a felony if it remained in his hands 6 and that it constituted “evidence” of a felony already having been committed. Under any one of such circumstances the pistol was amenable to seizure and confiscation in the diligent exercise of the duties incumbent upon the officer. There certainly was nothing “unreasonable” about the whole affair, and there was no unconstitutional intrusion of Bryant’s personal or property rights.
In view of our conclusions reached above it becomes unnecessary to decide whether the pistol was subject to seizure even though the officer did not make an arrest. It may be questioned, nonetheless, how Bryant can complain that at the time of the incident the deputy only seized the pistol and did not arrest, when, under the circumstances, he had a right to do both.7
The order appealed from should be, and it is hereby, reversed.
HOBSON, A. C. J„ and MANN, J., concur.
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B.W. v. State, 784 So. 2d 1219 (Fla. 2d DCA 2001)…tems that are within the scope of the forfeiture provision. Thus, while I would agree with the dissent that the cigarettes are not contraband subject to forfeiture, they are still contraband, and as such, are subject to seizure. See State v. Bryant, 250 So. 2d 344 (Fla. 2d DCA 1971). [*1221] However, the contraband issue is not controlling. Because the cigarettes are evidence of a violation of the law, they may be seized and used as proof at trial. Accordingly, the trial court was correct in denying the motio…
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Newman v. State, 251 So. 2d 712 (Fla. 3d DCA 1971)…Young, Fla.1968, 217 So. 2d 567; State v. Parnell, Fla.1969, 221 So. 2d 129; James v. State, Fla.App.1969, 223 So. 2d 52; Cockerham v. State, Fla.App.1970, 237 So. 2d 32; State v. Clarke, Fla.App.1971, 242 So. 2d 791; State v. Bryant, Fla.App.1971, 250 So. 2d 344 (opinion filed July 9, 1971); State v. Custer, Fla.App.1971, 251 So. 2d 287 (opinion filed July 9, 1971). Compare Graham v. State, Fla.App.1969, 229 So. 2d 616; State v. Graham, Fla.1970, 238 So. 2d 618.…
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State v. Kauflin, 294 So. 2d 4 (Fla. 1st DCA 1974)…ellant urges that this case is controlled by “the plan view doctrine”, citing State v. Parnell, Fla.1969, 221 So. 2d 129; State v. Perez, Fla.1973, 277 So. 2d 778; State v. Clarke, 4 Fla.App., 1970, 242 So. 2d 791; State v. Bryant, 2 Fla.App., 1971, 250 So. 2d 344 and Powers v. State, 1 Fla.App., 1973, 271 So. 2d 462. The appellee urges that the plain view doctrine is totally inapplicable and that the case is governed by the “fruit of the poisonous tree doctrine”, citing Silverthorne Lumber Company v. United…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carroll v. United States, 267 U.S. 132 (U.S. 1925)
- State v. Hiram Cazes Parnell, 221 So. 2d 129 (Fla. 1969)
- State v. Dire Estes Browning, 233 So. 2d 866 (Fla. 2d DCA 1970)