Ensor v. State

• Decision Date: 04 June 1981
• Docket Number: No. 57817,57817
• Citation: 403 So.2d 349
• Parties: Elton E. ENSOR, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 349

403 So.2d 349

Elton E. ENSOR, Petitioner, v. STATE of Florida, Respondent.

No. 57817.

Supreme Court of Florida.

June 4, 1981.

Rehearing Denied Sept. 25, 1981.

Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for petitioner.

Jim Smith, Atty. Gen. and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for respondent.

OVERTON, Justice.

This is a petition for certiorari to review a decision of the Fourth District Court of Appeal, State v. Ensor, 375 So.2d 13 (Fla 4th DCA 1979), which we find directly conflicts with Porchay v. State, 321 So.2d 439 (Fla. 1st DCA 1975); Christian v. State, 303 So.2d 405 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 778 (Fla.1975); and State v. Day, 301 So.2d 469 (Fla. 1st DCA 1974), cert. denied, 312 So.2d 748 (Fla.1975). We grant the petition for review. ¹ The issue to be determined is whether an object observed from a "pre-intrusive open view" and believed by a trained police officer to be a weapon can also simultaneously be a "concealed weapon" prohibited under section 790.01, Florida Statutes (1977). We answer the question in the affirmative, holding that what an officer observes in carrying out his duties and what the average person may see from "ordinary observation" are not necessarily the same. We affirm the result of the instant district court decision.

The facts are undisputed. On October 8, 1977, at about 2:35 a. m., two plainclothes policemen in an unmarked cruiser spotted a yellow Pinto exiting a parking lot following eight to ten motorcycles. The Pinto proceeded some ten blocks without its headlights turned on. Considering it a traffic hazard, the policemen sounded their siren and flashed their blue dash light to signal the Pinto to pull over. It proceeded another two blocks before stopping. The officers pulled in behind, identified themselves, and instructed the Pinto's two occupants to step to their vehicle's rear. Petitioner was the passenger. At about the same time, two other plainclothes policemen arrived at the scene to assist. While the first two officers questioned the Pinto's driver and petitioner, the second two stepped forward to look into the vehicle with their flashlights for hidden passengers, weapons, or other contraband in accordance with normal police procedure. Peering through the front windshield, one officer spotted a portion of a white object protruding from under the left side of the passenger floormat. From squatting and looking into the already-opened passenger door, the officer determined the object to be a derringer pistol. At that point, the officer entered the vehicle and retrieved the weapon.

The state charged petitioner with carrying a concealed weapon in violation of section 790.01. During his subsequent prosecution, petitioner moved to suppress the gun as being illegally seized without a warrant. The state responded that the weapon was in "plain view" and therefore properly seized. Petitioner countered that if the derringer was in "plain view," it could not be "concealed," and moved for dismissal on that basis. The trial court granted the dismissal, but the Fourth District reversed holding that a "concealed weapon" and a "plain-view search" were not necessarily mutually exclusive.

The outcome of the suppression motion and the motion for dismissal is controlled by the legality of the search and the legal status of the firearm. This situation requires us to answer two distinct questions: (1) whether the officers' search and seizure was a proper intrusion into petitioner's automobile, and (2) whether the weapon seized was in fact "concealed" under section 790.001. The answers are to a certain degree interrelated.

Legality of Search ("Plain View" vs. "Open View")

In addressing the first question, we note that the state initially justified its warrantless search and seizure by arguing that the weapon was in "plain view." The state has, however, confused the term "plain view" with what is properly termed "open view." Petitioner and the trial and district courts have likewise confused the terms. The error is not uncommon. ² Judge Charles Moylan of the Maryland Special Court of Appeals has properly defined and distinguished the terms:

In this context, we studiously avoid the phraseology "in plain view" to avoid any implication that the so-called "plain view doctrine" is being invoked. That doctrine is not here applicable. Needless confusion is frequently engendered by the employment in many opinions of the same phrase "in plain view" to describe two visually similar but legally distinct situations. The "plain view doctrine," as described in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, refers exclusively to the legal justification the reasonableness for the seizure of evidence which has not been particularly described in a warrant and which is inadvertently spotted in the course of a constitutional search already in progress or in the course of an otherwise justifiable intrusion into a constitutionally protected area. It has no applicability when the vantage point from which the "plain view" is made is not within a constitutionally protected area. It is, therefore literarily discreet to use for such latter situations some alternative phraseology such as ("open view,") "clearly visible," "readily observable," "open to public gaze," etc., rather than to employ the words "in plain view" in their purely descriptive capacity, lest the unwary reader read them in their other and talismanic capacity as an invocation of the doctrine of the same name in nonintrusive situations where it is not applicable.

Scales v. State, 13 Md.App. 474, 477, n.1, 284 A.2d 45, 47 n.1 (1971).

The term "plain view" has been misunderstood and misapplied because courts have made it applicable to three distinct factual situations. This has resulted in confusion of the elements of the "plain view doctrine." To eliminate this confusion, we believe it appropriate to distinguish the true "plain view doctrine" as established in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), from other situations where officers observe contraband.

The first factual situation we identify as a "prior valid intrusion." In this situation, an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband also in the protected area. It is this situation for which the United States Supreme Court created the "plain view doctrine" in Coolidge and held that an officer could constituonally seize the contraband in "plain view" from within this protected area. We emphasize that it is critical under this doctrine for the officer to be already within the constitutionally protected area when he inadvertently discovers the contraband.

We identify the second factual situation as a "non-intrusion." This situation occurs when both the officer and the contraband are in a non-constitutionally protected area. Because no protected area is involved, the resulting seizure has no fourth amendment ramifications, and, while the contraband could be defined as in "plain view," it should not be so labeled to prevent any confusion with the Coolidge "plain view doctrine."

The third situation concerns a "pre-intrusion." Here, the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. As with the non-intrusion situation, the term "plain view" should not be employed here to prevent confusion. For clarity, we label an observation in the latter two non-Coolidge situations as a legally permissive "open view."

We find that the instant facts fit properly into the third, pre-intrusion, category. The police officers had stopped the vehicle in which petitioner was a passenger pursuant to a valid traffic arrest. When one officer stepped forward to look into the vehicle, he stood outside the vehicle, a nonprotected area, and looked inside, a constitutionally protected area. It is clear at this point that, on seeing the firearm in "open view" through the open car door, the officer had probable cause to believe that the felony of possessing a concealed firearm was being committed in his presence. He then needed a warrant or warrant exception before he could enter the vehicle and seize the firearm. Under the facts, the officer was legally justified in seizing the firearm without a warrant under the "automobile exception" to the warrant requirement, the basis for warrantless entry being the exigency of a "movable" vehicle. Albo v. State, 379 So.2d 648 (Fla.1980). See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Cf. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (court stated that warrantless vehicle search is justified in part because of diminished expectation of privacy in automobile); Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (same). The officer was additionally justified in retrieving the weapon for purposes of self-protection. Warren v. United States, 447 F.2d 259 (9th Cir. 1971); United States v. Thompson, 420 F.2d 536 (3d Cir. 1970). See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). We hold therefore that the instant seizure was clearly reasonable.

Concealed Firearms

The second question which confronts us is: Under what circumstances is a firearm in fact "concealed"? Section 790.01, Florida Statutes (1977), reads in pertinent part:

(2) Whoever shall carry a concealed firearm on or about his person shall be guilty of a felony of the third degree....

Concealed...