Bethel v. State

93 So. 3d 410, 2012 WL 2579544, 2012 Fla. App. LEXIS 10802
CourtDistrict Court of Appeal of Florida
DecidedJuly 5, 2012
DocketNo. 4D10-3697
StatusPublished
Cited by6 cases

This text of 93 So. 3d 410 (Bethel v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bethel v. State, 93 So. 3d 410, 2012 WL 2579544, 2012 Fla. App. LEXIS 10802 (Fla. Ct. App. 2012).

Opinion

GERBER, J.

The defendant appeals his convictions for being a felon in possession of a firearm and possession of cannabis in an amount twenty grams or less. He argues that the circuit court erred in denying his motion to suppress the firearm and cannabis because: (1) at the time of the arrest, the arresting officer lacked probable cause that the defendant committed a crime; and (2) the officer entered into the curti-lage of the defendant’s house to arrest him without a warrant. We conclude those arguments lack merit. We affirm.

The undisputed facts are as follows. The arresting officer, while driving on patrol with his partner in a residential area, saw a car commit a traffic infraction. The officer activated his lights to conduct a traffic stop. The car came to a sudden stop in front of a house which had a fenced-in front yard. The officer saw one man in the driver’s seat and saw the defendant in the passenger’s seat. When the defendant exited the car, the officer saw four inches of the butt of a handgun sticking out of the defendant’s right pants pocket. The officer immediately recognized that the object was a handgun based on his experience of having seen thousands of handguns. The defendant walked into the fenced-in front yard towards the front door of the house. The officer yelled to his partner that the defendant had a gun. The officer then drew his own gun, ran into the yard towards the defendant, and ordered him to stop and put his hands up. The defendant complied. The officer then arrested the defendant and retrieved the gun from the defendant’s pocket.

The officer learned that the defendant was a convicted felon. Thus, the officer charged the defendant for being a felon in possession of a firearm. A search of the defendant also revealed that the defendant possessed cannabis in an amount twenty grams or less. The officer charged the defendant for that offense as well.

At the hearing on the motion to suppress, the officer testified that, upon seeing the gun in the defendant’s pocket, he did not know if the defendant had a concealed weapons permit. The officer also testified that, upon seeing the gun, he did not think to ask the defendant about the gun before taking action. Instead, he immediately sought to arrest the defendant out of concern for his and his partner’s safety. The officer further testified that, at the time that he drew his gun and ran towards the defendant, the defendant did not reach for the gun. The officer acknowledged that some pellet guns and BB guns look very similar to firearms until close inspection occurs. The officer also acknowledged later learning that the defendant lived at the house where the arrest occurred.

The defendant argued that the court should suppress the firearm and cannabis because, at the time of the arrest, the officer lacked probable cause that he committed a crime. He further argued that even if the officer had probable cause that he was committing the crime of open carrying of a weapon, the officer could not enter into the curtilage of his house to arrest him without a warrant. The state responded that the officer had probable [413]*413cause that the defendant was committing the crime of open carrying of a weapon, and that the officer could enter into the curtilage of the defendant’s house because the officer was in fresh pursuit of the defendant.

The circuit court denied the motion to suppress. The defendant later pled no contest to the charges, while expressly reserving the right to appeal the dispositive motion. The court then adjudicated the defendant guilty and sentenced him. This appeal followed.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Rowell v. State, 83 So.Sd 990, 993-94 (Fla. 4th DCA 2012) (citation and quotations omitted). “The appellate court defers to the trial court’s findings regarding the facts and uses the de novo standard of review for legal conclusions.” Nshaka v. State, 82 So.3d 174, 178-79 (Fla. 4th DCA 2012) (citation omitted).

Applying the foregoing standard of review, we conclude that the officer had probable cause to believe that the defendant committed the crime of open carrying of a weapon. “Probable cause to arrest or search exists when the totality of the facts and circumstances within an officer’s knowledge sufficiently warrant a reasonable person to believe that, more likely than not a crime has been committed.” State v. Blaylock, 76 So.3d 13, 14 (Fla. 4th DCA 2011) (citation and quotations omitted). The misdemeanor crime of “open carrying of weapons” is committed when “any person ... openly carries] on or about his or her person any firearm or electric weapon or device” except as provided by law. § 790.53(1) & (3), Fla. Stat. (2008).

The totality of the facts and circumstances within the officer’s knowledge sufficiently warranted a reasonable person to believe that the defendant committed the crime of open carrying of a weapon. The officer testified that once the defendant exited the car, the officer saw four inches of the butt of a gun sticking out of the defendant’s right pants pocket. The officer immediately recognized that the object was a handgun based on his experience of having seen thousands of handguns. Thus, the officer had probable cause to arrest the defendant for openly carrying on his person a firearm in violation of section 790.053(1). Cf. Dorelus v. State, 747 So.2d 368, 372 (Fla.1999) (“[Although the observations of the police officer will not necessarily be dispositive, a statement by the observing officer that he or she was able to ‘immediately recognize’ the questioned object as a weapon may conclusively demonstrate that the weapon was not concealed as a matter of law because it was not hidden from ordinary observation.”) (citation omitted).

Although the officer acknowledged that some pellet guns and BB guns look very similar to firearms until close inspection occurs, such a theoretical possibility does not defeat a finding of probable cause in light of the officer’s testimony that he immediately recognized the object was a gun based on his experience of having seen thousands of handguns. See Leighty v. State, 981 So.2d 484, 486 (Fla. 4th DCA 2008) (“In dealing with probable cause as the very name implies, the process does not deal with certainties but with probabilities. These are not technical niceties. They are factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technic[414]*414ians act.”) (emphasis and citation omitted).

We further conclude that the officer was able to arrest the defendant by entering into the curtilage of the defendant’s property without a warrant. We recognize that “[t]he zone of protection under the Fourth Amendment extends to the curtilage of a home, which includes a fenced or enclosed area encompassing the dwelling.” Tillman v. State, 934 So.2d 1263, 1272 (Fla.2006), superseded by statute on other grounds, § 776.051(1), Fla. Stat. (2008). However, “[officers are permitted to conduct a warrantless seizure of an item in ‘plain view’ if (1) the police see the item from a place they have a lawful right to be, (2) the incriminating nature of the item is ‘immediately apparent,’ and (3) the police have lawful access to the incriminating item.” Oliver v. State, 989 So.2d 16, 17 (Fla. 2d DCA 2008) (citing Horton v. California,

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Bluebook (online)
93 So. 3d 410, 2012 WL 2579544, 2012 Fla. App. LEXIS 10802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bethel-v-state-fladistctapp-2012.