McClendon v. State

District Court of Appeal of Florida

McClendon v. State

440 So. 2d 52, 1983 Fla. App. LEXIS 24066

CourtDistrict Court of Appeal of Florida

DecidedNovember 9, 1983

DocketNo. AS-165

StatusPublished

Cited by8 cases

This text of 440 So. 2d 52 (McClendon 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.

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McClendon v. State, 440 So. 2d 52, 1983 Fla. App. LEXIS 24066 (Fla. Ct. App. 1983).

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Opinion

JOANOS, Judge.

At about 2:30 a.m. on November 14,1982, Officer McDonald, who had stopped his vehicle and was in the process of issuing a citation to a motorist, observed a motorcycle run a red light. McDonald radioed Officer Baxter, who had driven past McDonald a short time before, to “stop the black motorcycle coming from behind you.” Baxter stopped appellant, who was riding the only motorcycle Baxter saw, and then called McDonald to find out why he wanted him to stop the motorcycle. McDonald told Baxter he had seen the motorcycle run the red light and he wanted Baxter to issue a traffic citation. When Baxter approached appellant McClendon to issue the citation, he observed a medium-sized bulge in the pocket area of appellant’s jacket. Baxter patted the area, felt a hard object, and about that time the pocket fell open revealing a pistol. Baxter seized the pistol and arrested McClendon for carrying a concealed firearm and possession of a firearm by a convicted felon, and he was later adjudicated guilty of both offenses. Baxter also cited appellant for running the red light. Baxter later said that when he observed him, McClendon was complying with all traffic laws.

McClendon appeals the denial of his motion to suppress evidence, arguing that both the stop and the subsequent frisk were illegal. McClendon contends Baxter was not authorized to stop him for the traffic infraction because the violation did not occur in Baxter’s presence, therefore it was not authorized by Section 901.15(5), Florida Statutes,¹ and it was a non-criminal infraction, see Section 318.14(1), Florida Statutes, therefore the stop was not authorized by Section 901.151, Florida Statutes.²

Although appellee’s brief is unresponsive to the issue of the significance of the violation being a non-criminal traffic infraction, we have concluded that the denial of the motion to suppress should be upheld on the authority of Section 901.18, which provides:

A peace officer making a lawful arrest may command the aid of persons he deems necessary -to make the arrest. A person commanded to aid shall render assistance as directed by the officer. A person commanded to aid a peace officer shall have the same authority to arrest as [54]*54that peace officer and shall not be civilly liable for any reasonable conduct in rendering assistance to that officer.

McClendon argues that even if the stop was valid, the frisk which led to the discovery of the firearm was not authorized because Baxter did not encounter him under circumstances indicating he had violated any criminal law, suggesting that only if he had moved his hand towards the pocket where the bulge was observed would Baxter have been justified in conducting a frisk. We disagree and conclude that the protective action taken by Baxter was justified under the circumstances, specifically because of the time of day, the fact that Officer Baxter was alone, and because of the visible bulge in McClendon’s pocket.

AFFIRMED.

LARRY G. SMITH and WENTWORTH, JJ., concur.

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JOANOS, Judge.

At about 2:30 a.m. on November 14,1982, Officer McDonald, who had stopped his vehicle and was in the process of issuing a citation to a motorist, observed a motorcycle run a red light. McDonald radioed Officer Baxter, who had driven past McDonald a short time before, to “stop the black motorcycle coming from behind you.” Baxter stopped appellant, who was riding the only motorcycle Baxter saw, and then called McDonald to find out why he wanted him to stop the motorcycle. McDonald told Baxter he had seen the motorcycle run the red light and he wanted Baxter to issue a traffic citation. When Baxter approached appellant McClendon to issue the citation, he observed a medium-sized bulge in the pocket area of appellant’s jacket. Baxter patted the area, felt a hard object, and about that time the pocket fell open revealing a pistol. Baxter seized the pistol and arrested McClendon for carrying a concealed firearm and possession of a firearm by a convicted felon, and he was later adjudicated guilty of both offenses. Baxter also cited appellant for running the red light. Baxter later said that when he observed him, McClendon was complying with all traffic laws.

McClendon appeals the denial of his motion to suppress evidence, arguing that both the stop and the subsequent frisk were illegal. McClendon contends Baxter was not authorized to stop him for the traffic infraction because the violation did not occur in Baxter’s presence, therefore it was not authorized by Section 901.15(5), Florida Statutes,¹ and it was a non-criminal infraction, see Section 318.14(1), Florida Statutes, therefore the stop was not authorized by Section 901.151, Florida Statutes.²

Although appellee’s brief is unresponsive to the issue of the significance of the violation being a non-criminal traffic infraction, we have concluded that the denial of the motion to suppress should be upheld on the authority of Section 901.18, which provides:

A peace officer making a lawful arrest may command the aid of persons he deems necessary -to make the arrest. A person commanded to aid shall render assistance as directed by the officer. A person commanded to aid a peace officer shall have the same authority to arrest as [54]*54that peace officer and shall not be civilly liable for any reasonable conduct in rendering assistance to that officer.

McClendon argues that even if the stop was valid, the frisk which led to the discovery of the firearm was not authorized because Baxter did not encounter him under circumstances indicating he had violated any criminal law, suggesting that only if he had moved his hand towards the pocket where the bulge was observed would Baxter have been justified in conducting a frisk. We disagree and conclude that the protective action taken by Baxter was justified under the circumstances, specifically because of the time of day, the fact that Officer Baxter was alone, and because of the visible bulge in McClendon’s pocket.

AFFIRMED.

LARRY G. SMITH and WENTWORTH, JJ., concur.

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440 So. 2d 52, 1983 Fla. App. LEXIS 24066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclendon-v-state-fladistctapp-1983.

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