Dorelus v. State

• Citation: 747 So.2d 368
• Decision Date: 30 September 1999
• Docket Number: No. 94,174.,94,174.
• Parties: James DORELUS, Petitioner, v. STATE of Florida, Respondent.
• Court: United States State Supreme Court of Florida

747 So.2d 368

James DORELUS, Petitioner, v. STATE of Florida, Respondent.

No. 94,174.

Supreme Court of Florida.

September 30, 1999.

Rehearing Denied January 12, 2000.

Richard L. Jorandby, Public Defender, and Gary Caldwell, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.

Robert A. Butterworth, Attorney General, Michael J. Neimand, Bureau Chief Assistant Attorney General, and Lara J. Edelstein, Assistant Attorney General, Fort Lauderdale, Florida, for Respondent.

PARIENTE, J.

We have for review State v. Dorelus, 720 So.2d 543 (Fla. 4th DCA 1998), which expressly and directly conflicts with Carpenter v. State, 593 So.2d 606 (Fla. 5th DCA 1992), and Taylor v. State, 552 So.2d 1135 (Fla. 5th DCA 1989).¹ We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Dorelus and his codefendant Presume were stopped for a minor traffic infraction. "While standing outside the vehicle," the arresting officer "observed the shiny silver butt of a handgun sticking out of the console located underneath the radio."² Both Dorelus and Presume were arrested and charged with carrying a concealed firearm. Dorelus and Presume filed sworn motions to dismiss the informations against them. Presume's motion was granted first. In his motion, Dorelus requested that the trial court take notice of the order previously granting Presume's motion on the concealed weapon charge based on the same facts.

The State did not file a traverse to Dorelus's motion to dismiss, but instead relied on the arguments it made in Presume's case. The State admitted that it had not filed a traverse because there were "no material facts in dispute." The trial court granted Dorelus's motion to dismiss.

Relying on Ensor v. State, 403 So.2d 349, 354-55 (Fla.1981), the Fourth District reversed the trial court, holding that "[w]hether a partially visible firearm is `concealed' is an issue of fact for the jury." Dorelus, 720 So.2d at 544.³ Dorelus argues that the Fourth District improperly relied on Ensor in reaching this conclusion.

The statute at issue in this case, section 790.01(2), Florida Statutes (1995), provides: "Whosoever shall carry a concealed firearm on or about his person shall be guilty of a felony of the third degree...."⁴ Section 790.001(2), Florida Statutes (1995), defines "concealed firearm" as any firearm "carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person." This statute does not apply to those who have licenses to carry concealed firearms or weapons. See § 790.06, Fla. Stat. (1995).

Although the statutes at issue in this case pertain exclusively to firearms, a similar subsection of the statute applies to other kinds of weapons. See § 790.01(1).⁵ As with concealed firearms, a "concealed weapon" is defined as "any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person." § 790.001(3)(a) (emphasis supplied).

The concealed weapon statute is inapplicable if the firearm or other weapon carried in a private motor vehicle is "securely encased or is otherwise not readily accessible for immediate use." § 790.25(5), Fla. Stat. (1995). Thus, in this state, individuals are prohibited from carrying concealed firearms without a license in their private motor vehicles, unless the firearm is securely encased or otherwise inaccessible. As was stated over a century ago, the prohibition against carrying concealed weapons is designed to prevent a person with a weapon from "taking some undue advantage over an unsuspecting adversary," who is not aware that the person is carrying a weapon. Sutton v. State, 12 Fla. 135, 136 (1867).

Ensor is the seminal case setting forth the circumstances under which a weapon is "concealed" with the meaning of section 790.001. In Ensor, this Court held that for a weapon to be concealed within the meaning of the statute it need not be absolutely invisible. 403 So.2d at 354. The Ensor Court also held that the statutory phrase "ordinary sight of another person," as used in section 790.001(2),⁶ means "the casual and ordinary observation of another in the normal associations of life." Id. at 354. We explained that

[t]he critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case.

Id. at 355. Unfortunately, this broad statement suggests that the trier of fact must always answer the question of whether a weapon is "concealed."

However, just as we rejected the conclusion in Ensor that absolute invisibility is a required element of concealment, we also reject the proposition that simply because a portion of a weapon cannot be seen upon casual observation the issue is automatically for the jury. See Cope v. State, 523 So.2d 1270, 1272 (Fla. 5th DCA 1988)

. To the extent that Ensor can be read to stand for the proposition that the issue of whether a weapon is concealed within the meaning of the statute is always for the trier of fact to resolve, we clarify that the issue of concealment is ordinarily an issue for the trier of fact.

We also recognize that by focusing on the viewpoint of the observer in Ensor to answer the question of concealment, we may have inadvertently led the judicial inquiry away from considering the manner in which the weapon is carried. The statutes at issue explicitly define "concealed firearm" and "concealed weapon" by focusing on the "manner" in which the weapon is carried on or about the person. See § 790.001(2)-(3)(a). Our decision in State v. Teague, 475 So.2d 213, 214 (Fla.1985), recognized this focus by making clear that the crux of concealment is the location of the weapon in the vehicle.

In Teague, after the defendant opened his car door, the arresting officer observed the muzzle portion of a rifle lying uncovered on the front seat of the defendant's vehicle after the defendant opened his car door. The State alleged that statute had been violated because the weapon was concealed from the ordinary sight of another person by the vehicle's tinted windows. Id. at 214. We rejected that contention and determined that due to the fact that the rifle had not been concealed within the vehicle, the automobile's tinted windows obscuring the weapon and the driver did not result in a violation of the concealed weapons law.⁷ See id.

While the statute does not allow for hard-and-fast rules, variables that can be taken into consideration by the trial court in evaluating whether the weapon has been carried in such a manner as to be hidden from ordinary sight include the location of the weapon within the vehicle, such as the floorboard, the seat, a seat pocket, or an open console. The court should also consider whether, and to what extent, the weapon was covered by another object, such as a sheet or towel. In addition, although the specific intent of the defendant to conceal the weapon is not an element of the crime, the court may consider testimony that the defendant utilized his body in such a way as to conceal a weapon that would otherwise have been detectable by ordinary observation. See State v. Hankerson, 430 So.2d 517, 518 (Fla. 2d DCA 1983) (concealment was a question of fact where the defendant was "leaning over" the weapon located between the seats of his car, "with one arm draped over the butt of the weapon" to prevent the officer from observing it).

The court may also consider the nature and type of weapon involved because logic dictates that it is easier to conceal a handgun from "ordinary sight" than it is to conceal a rifle, and that weapons such as the large knife in Gibson v. State, 576 So.2d 899 (Fla. 2d DCA 1991), or the large hunting knife in State v. Hardy, 610 So.2d 38 (Fla. 5th DCA 1992), are by their very nature more easily observable than smaller weapons. In considering these and other variables, in all instances common sense should prevail. See Ensor, 403 So.2d at 354-55

. The focus should remain on whether the weapon was carried in such a manner as to conceal it from ordinary sight.

In addition, 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. See, e.g., Hardy, 610 So.2d at 38

; Cope v. State, 523 So.2d at 1270. On the other hand, the mere fact that an officer does not immediately observe the firearm does not mean that the question of concealment is automatically for the jury. For example, as Judge Sharp explained in Carpenter:

The record established without dispute or conflict that when Carpenter was stopped by a police officer for a possible DUI charge, there was a handgun in the front seat beside her. The grip and hammer were sticking up six inches above the level of the seat, and the police officer immediately recognized it as a handgun.

The quirk of facts in this case was that the police officer did not initially see the gun when he first stopped the car. It was approximately 11:45 p.m., and there were no street lights near the place Carpenter parked the car. Carpenter is 5'5" tall and weighs 190 pounds. Her body may have obscured the officer's view of the gun and there was also unrebutted testimony that he did not look into the car interior until later.

Carpenter, 593 So.2d at 607 (emphasis supplied).

Despite the "quirk of facts" in Carpenter, the Fifth District held that the motion to dismiss the concealed weapons charge should have been granted. See id. As Carpenter...