CURTIS MCNAIR, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Curtis McNair appeals his conviction for carrying a concealed firearm, challenging both the warrantless search of his apartment and the denial of his motion for acquittal based on a home-carry exemption. The court affirmed, finding exigent circumstances justified the warrantless search and that McNair was not protected by the home exemption since he was carrying the pistol outside his residence.
The warrantless search was constitutional based on exigent circumstances arising from officer safety concerns. McNair was not protected by the home-carry exemption because he was carrying the pistol on his person outside his residence, not within it.
[1] A warrantless search of an apartment is justified by exigent circumstances when an officer observes a suspect discard a firearm into the apartment and, concerned for safe…
[2] A person carrying a firearm on their person is not exempt from concealed firearm charges when the firearm is not located within their home.
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Join FLexlaw to unlock all legal intelligence“Officer Allen, not knowing if anyone was in the apartment, became concerned for his safety and that of others based upon the possibility that someone could have been inside and could have access to the pistol. He thereupon removed McNair's wife who was blocking the entrance, entered the apartment and retrieved the pistol. This constituted sufficient evidence of exigent circumstances.”
Establishes the court's reasoning that officer safety concerns regarding firearm access justified warrantless entry
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOfficer Allen observed McNair approximately 30-35 feet from his apartment remove a pistol from his pocket and throw it to his wife standing on the apa…
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PER CURIAM.
Curtis McNair appeals his conviction for carrying a concealed firearm and first urges as reversible error the denial of his motion to suppress the pistol seized from his apartment pursuant to a warrantless search where there were no exigent circumstances or other recognized exceptions to the warrant requirement.
The record reflects to the contrary. Officer Allen, who searched the apartment, testified that he observed McNair who was some 30 to 35 feet away from his apartment pull a pistol from his pocket, turn and walk about 15 feet and then throw the pistol to his wife standing on the porch in front of their apartment. She took the pistol and tossed it inside the apartment. Officer Allen, not knowing if anyone was in the apartment, became concerned for his safety and that of others based upon the possibility that someone could have been inside and could have access to the pistol. He thereupon removed McNair’s wife who was blocking the entrance, entered the apartment and retrieved the pistol. This constituted sufficient evidence of exigent circumstances. See McGeehan v. Wainwright, 526 F. 2d 397 (5th Cir. 1976); U. S. v. Bowdach, 414 F.Supp. 1346 (S.D.Fla.1976).
McNair next argues that the court erred in denying his motion for judgment of acquittal because he was exempted from the crime charged in that he carried the firearm at his own home pursuant to Section 790.25(3)(n), Florida Statutes (1975).
This argument is without merit as McNair was carrying the pistol on his person when he was about 30 to 35 feet from his apartment. See Facion v. State, 290 So. 2d 75 (Fla. 2d DCA 1974); Rash v. State, 331 So. 2d 373 (Fla. 3d DCA 1976).
Affirmed.
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Dedmon v. State, 400 So. 2d 1042 (Fla. 1st DCA 1981)…the search was “standard procedure;” they could offer no “ar-ticulable facts” on which to base a conclusion that there might be other persons present in the house. Because of that the court held the search to be invalid. However, in McNair v. State, 354 So. 2d 473 (Fla.3d DCA 1978), because the officer saw the defendant’s wife toss a gun inside, the search of an apartment after an arrest was made outside the residence was upheld. The possibility that someone inside could have access to the pistol “... constit…
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Klosieski v. State, 482 So. 2d 448 (Fla. 5th DCA 1986)…So. 2d 896 (Fla. 1st DCA 1984); Dedmon v. State, 400 So. 2d 1042 (Fla. 1st DCA 1981); Newton v. State, 378 So. 2d 297 (Fla. 4th DCA 1979), review denied, 389 So. 2d 1115 (Fla.1980); Grant v. State, 374 So. 2d 630 (Fla. 3d DCA 1979); McNair v. State, 354 So. 2d 473 (Fla. 3d DCA 1978). Absent extraordinary circumstances, government agents have no right to search a dwelling when an arrest is effectuated outside it. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). In Payton v. New York, 445 U…
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Newton v. State, 378 So. 2d 297 (Fla. 4th DCA 1979)…onsistent herewith. REVERSED AND REMANDED. ANSTEAD, J., and SCHWARTZ, ALAN R., Associate Judge, concur. . “A Protective sweep” appears to be a euphemistic phrase meaning a cursory search of the premises for additional persons. . McNair v. State, 354 So. 2d 473 (Fla. 3d DCA 1978); McGeehan v. Wainwright, 526 F. 2d 397 (5th Cir. 1976), cert. denied 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976); United States v. Baker, 577 F. 2d 1147 (4th Cir. 1978), cert. denied 439 U.S. 858, 99 S.Ct. 154, 58 L.Ed.2d 1…
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
- McGEEHAN v. Louie L. Wainwright, 526 F.2d 397 (5th Cir. 1976)
- Facion v. State, 290 So. 2d 75 (Fla. 2d DCA 1974)
- Rash v. State, 331 So. 2d 373 (Fla. 3d DCA 1976)