Porchay v. State, s. V--443
| Decision Date | 07 November 1975 |
| Docket Number | Nos. V--443,X--252,s. V--443 |
| Parties | Bobby Ray PORCHAY et al., Appellants, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard W. Ervin, III, Public Defender, and David, J. Busch, Asst. Public Defender, for appellants.
Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for appellee.
As a result of police officers stopping an automobile in which the three appellants were riding, a search was conducted, resulting in appellants Porchay and Wiltz each being charged with carrying a concealed firearm and Stewart being charged with possession of a controlled substance, i.e., cannabis. After the trial court denied appellants' motion to suppress 'all material obtained by unlawful search and seizure', appellants were duly adjudicated guilty upon their respective pleas of nolo contendere.
A reading of the record of this case readily reveals that the vehicle occupied by appellants was stopped by the police officers only because the occupants appeared 'suspicious'. At the time the vehicle was stopped there existed no probable cause to believe that a crime had been committed nor that the appellants were in the process of committing one. The record fully supports the testimony of Officer Branes that the reason the vehicle was stopped was to check and see who the subjects were--an identification check. A bare suspicion, without cause, will not constitute reasonable grounds for detention. 1
After the officers stopped the vehicle one of them shined a flashlight into the car and saw a 'small .22 pistol laying on the front floorboard of the car on the driver's side.' In answer to the question, 'What portion of this pistol were you able to see from where you were standing?', he said, 'all of it.' The officers then searched the three appellants. Wilitz, the driver, had no contraband on his person; Porchay had a .32 caliber pistol in a shoulder holster; and Stewart had a bag of marijuana in his sock.
The state urges that since the Texas license plate on the vehicle was bent and not fully readable, this alone provided a justification for stopping the car. The immediate answer is that it is clear from the record that such was not the reason. At best, the defective license plate was a pretense for stopping the vehicle and searching for evidence.
However, even should we assume that the officers were justified in stopping the automobile, the ensuing search was illegal. Officer Davis gave as a basis for searching the occupants of the vehicle that upon shining his flashlight into the vehicle, he saw in plain view all of a .22 pistol on the floorboard of the Chevrolet. The state in its brief 'takes the position that the motion (to suppress) was properly denied below since . . . (b) the search of the three defendants was entirely justified following the 'plain view' observation of the illegal firearm. . . .' However, the state has not advised as to how the firearm that was in 'plain view' is matamorphosized into a 'concealed firearm', and thus illegal. The Attorney General in his Opinion #072--161 advises that a person carrying a pistol in an automobile, 'on the floor and...
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...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 46......
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Wilhelm v. State, 87-709
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