KENNETH R. LUTZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Lutz appeals his conviction for burglary and grand larceny, challenging the police stop and frisk that led to discovery of a stolen weapon. The appellate court affirmed the conviction, finding the initial stop lawful and holding that no illegal search occurred because Lutz voluntarily exposed the weapon before any frisk took place.
The trial court properly denied the motion to dismiss because there was sufficient probable cause to stop and question Lutz given the timing of the officers' arrival and that he and Weatherby were the only people in the area. More significantly, no illegal search occurred because Lutz voluntarily opened his coat and exposed the weapon before any frisk took place, making questions about probable cause to frisk and consent to search moot.
[1] Police officers have sufficient probable cause to stop and question individuals when they arrive shortly after a dispatch to a scene and the individuals are the only peop…
[2] A stop of individuals by police officers can be a proper investigative function.
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Join FLexlaw to unlock all legal intelligence“We do not need to reach the question of whether or not there was probable cause to frisk defendant because by all accounts, defendant was never frisked or searched. He voluntarily opened his coat exposing the concealed firearm to view before the officer frisked him.”
Establishes that the dispositive issue is the voluntary disclosure, making the legality of the frisk irrelevant
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Join FLexlaw to unlock all legal intelligencePolice responded to a report of boys firing a rifle at a bridge. Upon arrival 1.5 to 2 minutes later, officers found only Lutz and Weatherby walking a…
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BOYER, Judge.
Appellant (hereinafter defendant) appeals a final judgment adjudicating him guilty of two counts of burglary of a dwelling and one count of grand larceny. The relevant facts are as follows:
In response to a complaint lodged with the police, two officers were dispatched to a bridge where, according to the dispatch, two young boys were firing a rifle into the water. When they arrived, about V-k to 2 minutes after the dispatch, the officers saw two young men, who were the only people in the area, walking along the road away from the bridge. The officers stopped the two young men and asked them if they had seen any boys shooting a weapon. The two men said they hadn’t seen any boys shooting a weapon and identified themselves as Stephen Weatherby and Kenneth R. Lutz, defendant herein. One of the officers informed defendant and Weatherby that he routinely pats down a person when dispatched to a scene in which a weapon is possibly involved. When the officer approached defendant to frisk him, defendant said, “Okay, I have got a weapon” and opened his coat showing the officers a .32 automatic pistol. Defendant testified that the officer actually frisked his companion, Weatherby, and then approached defendant who opened his coat exposing the gun. The weapon had been stolen in a burglary a few days earlier. Defendant and Weatherby were arrested and a subsequent investigation led to charges against defendant for the burglary of several St. Augustine residences.
We find no error in the trial court’s denial of defendant’s motion to dismiss the charges against him based on the grounds that the evidence demonstrated insufficient probable cause for the police officers to frisk or threaten to frisk defendant for a weapon.
The evidence indicates sufficient probable cause for the officers to stop defendant and Weatherby and question them concerning the incident since the officers arrived only IV2 to 2 minutes after the dispatch and the defendant and Weatherby were the only people in the area. Furthermore, the stop of defendant and Weatherby was performed in the pursuit of a proper investigative function.
We do not need to reach the question of whether or not there was probable cause to frisk 'defendant because by all accounts, defendant was never frisked or searched. He voluntarily opened his coat exposing the concealed firearm to view before the officer frisked him. Therefore probable cause to frisk and consent to search are not viable issues in this case since there was no illegal search, indeed no search at all.
The judgment is affirmed.
McCORD, C. J., and MELVIN, J., concur.
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Neely v. State, 402 So. 2d 477 (Fla. 2d DCA 1981)…s whether appellant can complain of having produced the Quaaludes in response to the question about what was left in his pocket. The issue is not so much whether there was a consent to search, but whether there was a search at all. In Lutz v. State, 354 So. 2d 141 (Fla. 1st DCA 1978), the court upheld the seizure of a gun which the defendant handed the policeman when he was preparing to conduct a routine pat-down. The court said: [*479] We do not need to reach the question of whether or not there was probable…
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P. S. D. v. State, 388 So. 2d 1069 (Fla. 3d DCA 1980)…ication, but is surely not sufficient in itself to justify a stop. .Since a frisk of the appellant did not occur, we need not reach the question of whether it too would have been justified by the information known to the officer. See Lutz v. State, 354 So. 2d 141 (Fla. 1st DCA 1978); cf. United States v. Pope, 561 F. 2d 663 (6th Cir. 1977). It is our view, however, that a frisk of the appellant would have been justified in light of the nature of the intended crime and the unusual clothing worn by the appella…
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State v. Boutwell, 367 So. 2d 231 (Fla. 1st DCA 1979)…cles in that area, we recovered vehicles used in armed robberies in that area,” according to the testimony of Deputy Suarez. When the officer stopped the truck, he lawfully observed in plain view dynamite in the back of the truck. See Lutz v. State, 354 So. 2d 141 (Fla. 1st DCA 1978); State v. Brooks, 281 So. 2d 55 (Fla.2d DCA 1973); State v. Miller, 267 So. 2d 352 (Fla.4th DCA 1972); and State v. Stevens, 354 So. 2d 1244 (Fla.4th DCA 1978). The defendant was charged with violating Section 790.161(3), Florida…
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