State v. Herron

District Court of Appeal of Florida

State v. Herron

68 So. 3d 330, 2011 Fla. App. LEXIS 12526, 2011 WL 3477030

CourtDistrict Court of Appeal of Florida

DecidedAugust 10, 2011

Docket3D10-2538

StatusPublished

Cited by3 cases

This text of 68 So. 3d 330 (State v. Herron) 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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State v. Herron, 68 So. 3d 330, 2011 Fla. App. LEXIS 12526, 2011 WL 3477030 (Fla. Ct. App. 2011).

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SHEPHERD, J.

The State of Florida appeals an order granting the defendant’s, Dwight Herron, motion to suppress a firearm seized from his person following a traffic stop. We affirm the order of the trial court.

After executing a valid routine traffic stop, Miami-Dade County Police Officer Robert McGrath ordered Herron out of his vehicle, and to place his hands on top of the roof for the purpose of an external pat-down search. After Herron placed his hands on the roof of the vehicle, Officer McGrath observed a bulge on the small of Herron’s back. The pat-down and subsequent search revealed the bulge to be a holster and firearm.

Upon a lawful traffic stop, a police officer may order the driver out of his vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (finding a police officer’s order for the defendant to exit a vehicle to be a de minimis intrusion into the driver’s personal liberty). However, such a stop does not, in and of itself, give rise to a valid reason for a weapons pat-down. See Richardson v. State, 599 So.2d 703, 705 (Fla. 1st DCA 1992). Such a pat-down is authorized only where the officer has a reasonable suspicion to believe the suspect is armed with a dangerous weapon. See § 901.151(5), Fla. Stat. (2009); Richardson, 599 So.2d at 705.

The State argues the pat-down was lawful because Herron appeared “excruciatingly] nervous, fidgety,” could not produce a driver’s license, proof of insurance, or car registration, and appeared to be “looking out the window [for] an avenue of escape.” The State further points out that the officer did not feel comfortable returning to his vehicle to run a DAVID System identification or mug shot system identification of the defendant under the circumstances.

These series of events, either singularly or cumulatively, are insufficient to justify a pat-down when there is no additional articulable suspicion the person is armed with a dangerous weapon. See Ray v. State, 849 So.2d 1222, 1225 (Fla. 4th DCA 2003); Richardson, 599 So.2d at 705. The after-the-fact observation of a bulge on the defendant cannot be used as justification for a pat-down. See Richardson, 599 So.2d at 705. Thus, evidence of Her-ron’s nervousness and Officer McGrath’s hunch that “there was something going on,” before the pat-down, were insufficient to create the requisite reasonable suspicion that Herron was armed with a dangerous weapon. See Coleman v. State, 990 So.2d 1255, 1255 (Fla. 4th DCA 2008).

We affirm the decision of the trial court.

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SHEPHERD, J.

The State of Florida appeals an order granting the defendant’s, Dwight Herron, motion to suppress a firearm seized from his person following a traffic stop. We affirm the order of the trial court.

After executing a valid routine traffic stop, Miami-Dade County Police Officer Robert McGrath ordered Herron out of his vehicle, and to place his hands on top of the roof for the purpose of an external pat-down search. After Herron placed his hands on the roof of the vehicle, Officer McGrath observed a bulge on the small of Herron’s back. The pat-down and subsequent search revealed the bulge to be a holster and firearm.

Upon a lawful traffic stop, a police officer may order the driver out of his vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (finding a police officer’s order for the defendant to exit a vehicle to be a de minimis intrusion into the driver’s personal liberty). However, such a stop does not, in and of itself, give rise to a valid reason for a weapons pat-down. See Richardson v. State, 599 So.2d 703, 705 (Fla. 1st DCA 1992). Such a pat-down is authorized only where the officer has a reasonable suspicion to believe the suspect is armed with a dangerous weapon. See § 901.151(5), Fla. Stat. (2009); Richardson, 599 So.2d at 705.

The State argues the pat-down was lawful because Herron appeared “excruciatingly] nervous, fidgety,” could not produce a driver’s license, proof of insurance, or car registration, and appeared to be “looking out the window [for] an avenue of escape.” The State further points out that the officer did not feel comfortable returning to his vehicle to run a DAVID System identification or mug shot system identification of the defendant under the circumstances.

These series of events, either singularly or cumulatively, are insufficient to justify a pat-down when there is no additional articulable suspicion the person is armed with a dangerous weapon. See Ray v. State, 849 So.2d 1222, 1225 (Fla. 4th DCA 2003); Richardson, 599 So.2d at 705. The after-the-fact observation of a bulge on the defendant cannot be used as justification for a pat-down. See Richardson, 599 So.2d at 705. Thus, evidence of Her-ron’s nervousness and Officer McGrath’s hunch that “there was something going on,” before the pat-down, were insufficient to create the requisite reasonable suspicion that Herron was armed with a dangerous weapon. See Coleman v. State, 990 So.2d 1255, 1255 (Fla. 4th DCA 2008).

We affirm the decision of the trial court.

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68 So. 3d 330, 2011 Fla. App. LEXIS 12526, 2011 WL 3477030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-herron-fladistctapp-2011.

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