State v. Averette

District Court of Appeal of Florida

State v. Averette

473 So. 2d 3, 10 Fla. L. Weekly 1616, 1985 Fla. App. LEXIS 15070

CourtDistrict Court of Appeal of Florida

DecidedJune 26, 1985

DocketNo. 84-2564

StatusPublished

Cited by1 cases

This text of 473 So. 2d 3 (State v. Averette) 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

State v. Averette, 473 So. 2d 3, 10 Fla. L. Weekly 1616, 1985 Fla. App. LEXIS 15070 (Fla. Ct. App. 1985).

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Opinion

FRANK, Judge.

Timothy Averette was charged with possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes. The trial court granted Averette’s motion to suppress the firearm that gave rise to the charges against him. The state appealed and we reverse.

The record reveals that Averette’s car was stopped by a police officer who knew, from a prior investigation, of the existence of an outstanding warrant for Averette’s arrest stemming from an animal control ordinance violation. After the stop the officer immediately confirmed the existence of the warrant and arrested Averette. We perceive no constitutional infirmity in either the stop or the arrest.

Prior to transporting Averette to the police station, the officer, who also knew that Averette had previously been in possession of a firearm, began searching Averette’s car. Immediately upon leaning into the driver’s side of the car he observed the butt of a handgun protruding from under the driver’s seat. The officer seized the gun, and Averette subsequently moved to suppress the evidence, contending that a war-rantless search was conducted without probable cause. The trial judge granted Averette’s motion on the basis that there was no necessity for an inventory search of the vehicle.

As we have noted above, the initial stop and arrest were valid. The subsequent search of the automobile was also constitutional upon the authority of New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981): “[WJhen a policeman has' made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”

Accordingly, because there appears to have been no proper foundation for suppression of the gun seized from Averette’s car, we reverse the trial court’s order granting his motion to suppress and remand this case for further proceedings.

SCHEB, A.C.J., and SCHOONOVER, J., concur.

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FRANK, Judge.

Timothy Averette was charged with possession of a firearm by a convicted felon in violation of section 790.23, Florida Statutes. The trial court granted Averette’s motion to suppress the firearm that gave rise to the charges against him. The state appealed and we reverse.

The record reveals that Averette’s car was stopped by a police officer who knew, from a prior investigation, of the existence of an outstanding warrant for Averette’s arrest stemming from an animal control ordinance violation. After the stop the officer immediately confirmed the existence of the warrant and arrested Averette. We perceive no constitutional infirmity in either the stop or the arrest.

Prior to transporting Averette to the police station, the officer, who also knew that Averette had previously been in possession of a firearm, began searching Averette’s car. Immediately upon leaning into the driver’s side of the car he observed the butt of a handgun protruding from under the driver’s seat. The officer seized the gun, and Averette subsequently moved to suppress the evidence, contending that a war-rantless search was conducted without probable cause. The trial judge granted Averette’s motion on the basis that there was no necessity for an inventory search of the vehicle.

As we have noted above, the initial stop and arrest were valid. The subsequent search of the automobile was also constitutional upon the authority of New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981): “[WJhen a policeman has' made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”

Accordingly, because there appears to have been no proper foundation for suppression of the gun seized from Averette’s car, we reverse the trial court’s order granting his motion to suppress and remand this case for further proceedings.

SCHEB, A.C.J., and SCHOONOVER, J., concur.

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Bluebook (online)

473 So. 2d 3, 10 Fla. L. Weekly 1616, 1985 Fla. App. LEXIS 15070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-averette-fladistctapp-1985.

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