STATE OF FLORIDA, APPELLANT,
v.
SAMUEL MASON DAY, III, APPELLEE
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Florida appealed a trial court's order suppressing evidence obtained from a warrantless search of an automobile and person. The District Court affirmed the suppression order, finding that a pistol visible on the automobile's floor was not legally "concealed" under Florida law, so the arrest for carrying a concealed firearm was unlawful and the subsequent search was invalid.
The pistol was not concealed from ordinary sight because it was clearly visible on the automobile floor in a well-lit area. Therefore, the arrest for carrying a concealed firearm was unlawful, and the subsequent search incident to that arrest was invalid. The trial court's suppression order was properly granted.
[1] A firearm is not concealed when it is in plain view on the floor of an automobile and visible through the windshield.
[2] An arrest for carrying a concealed firearm is unlawful if the firearm was not concealed.
Previewing 2 of 4 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“It is obvious, however, that the pistol could not be both concealed and in plain view.”
The court identifies the logical flaw in the state's dual arguments about the pistol's visibility.
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Join FLexlaw to unlock all legal intelligenceA deputy sheriff observed appellee and another person in a service station parking lot at 4:30 a.m. The area was well-lit. When the officer approached…
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McCORD, Judge.
This is an interlocutory appeal from an order granting a motion to suppress certain evidence found upon search of an automobile and the person of appellee.
A deputy sheriff, while on patrol at about 4:30 a. m. on October 27, 1973, observed-an automobile occupied by appellee and another person in a service station parking lot. The parking lot was well lighted and as the deputy approached, the occupants got out of the automobile, one going to a nearby telephone booth, and the other standing beside the automobile. When the officer stopped, both persons approached the officer’s vehicle on the passenger side and started talking to the officer’s partner. At this time, the officer got out of the vehicle, looked through the windshield of appellee’s automobile, and observed the butt end of a pistol protruding from under the driver’s front seat. The officer then opened the automobile door, removed the pistol and placed appel-lee under arrest for carrying a concealed firearm and prowling. The officer then searched appellee and the automobile and found contraband in his coat pocket and coat lining. The officer testified that there was nothing suspicious about the two men, that the area was well lighted and the telephone booth was well lighted.
The only basis for this search was as an incident to an alleged lawful arrest of appellee for carrying a concealed firearm. The state contends on the one hand that the “concealed” firearm was in plain view and was thus subject to seizure under the plain view doctrine. On the other hand the state contends the firearm was concealed and that, therefore, appellee was legally arrested for carrying a concealed firearm; that the subsequent search which revealed contraband was, therefore, a valid search as incident to a lawful arrest. It is obvious, however, that the pistol could not be both concealed and in plain view.
The arresting officer testified that the pistol was not concealed; that it was on the floor of the automobile clearly visible to anyone glancing through the windshield; that the area was well lighted and he could easily see the pistol in the automobile without using his flashlight.
Appellee cites, as persuasive authority in support of his contention that the arrest was not lawful, the Attorney General’s Opinion No. 072-161 which states:
“A man who carries a pistol in an automobile, on the floor and partially exposed, does not violate § 790.05, even if he has no license from the county commissioners. He violates § 790.01(2) if, and only if, the pistol is in close proximity to him or within his easy reach, and is concealed from the ordinary sight of another person . . .”
We agree with the Attorney General s opinion on this point and from the testimony presented in this case, it is clear that appellee’s pistol was not concealed from the ordinary sight of another person. The search, therefore, was not one incident to a lawful arrest.
Affirmed.
RAWLS, C. J., and SPECTOR, J., concur.
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Elton E. Ensor v. State, 403 So. 2d 349 (Fla. 1981)…, 375 So. 2d 13 (Fla. [*351] 4th DCA 1979), which we find directly conflicts with Porchay v. State, 321 So. 2d 439 (Fla. 1st DCA 1975); Christian v. State, 303 So. 2d 405 (Fla. 3d DCA 1974), cert. denied, 314 So. 2d 778 (Fla.1975); and State v. Day, 301 So. 2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So. 2d 748 (Fla.1975). We grant the petition for review.1 The issue to be determined is whether an object observed from a “pre-intrusive open view” and believed by a trained police officer to be a weapon can al…1 / 3
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State v. Riocabo, 372 So. 2d 126 (Fla. 3d DCA 1979)…rd District, in 1974, held that a firearm visible to the officer, protruding from the seat of the vehicle, was not a concealed firearm. On that basis, the search of the car was not permissible. Christian v. State, supra, and State v. Day [Fla.App.], 301 So. 2d 469 (1st Dist. 1974) are controlling as to the definition of a concealed firearm rather than State v. Sellers [Fla.App.], 281 So. 2d 397 (2d Dist.1973) cited by the State.” The trial court’s determination upon questions of fact at a motion to suppress…1 / 2
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State v. Bethea, 409 So. 2d 1139 (Fla. 2d DCA 1982)…hout opening the vehicle door and only a small portion of the butt was observable by the deputy with the door open. The trial court granted the motion, holding that as a matter of law the firearm was not concealed. The court relied on State v. Day, 301 So. 2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So. 2d 748 (Fla.1975) and Porchay v. State, 321 So. 2d 439 (Fla. 1st DCA 1975). We hold that the lower court erred in granting the motion to dismiss. Florida Rule of Criminal Procedure 3.190(c)(4) requires tha…
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