State v. Hankerson, 82-830
| Decision Date | 22 April 1983 |
| Docket Number | No. 82-830,82-830 |
| Citation | 430 So.2d 517 |
| Parties | STATE of Florida, Appellant, v. Kenneth HANKERSON, a/k/a Willie Neal, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellant.
Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bartow, for appellee.
Appellee, Kenneth Hankerson, was charged by information with three counts of carrying a concealed firearm, specifically, a Marlin rifle, a short-barreled rifle and a short-barreled shotgun, and with two counts of possession of a short-barreled weapon. 1 The state appeals an order granting his motion to dismiss and suppress. We reverse.
The facts are undisputed. On November 20, 1981, Trooper Daum received information from a passing motorist about a vehicle being driven in an erratic manner on Highway 27 in Highlands County. After locating the described vehicle and personally observing its erratic operation, Trooper Daum stopped it on the suspicion that its operator was driving under the influence of alcohol. The driver of the vehicle got out and explained to Trooper Daum that the vehicle had mechanical problems. Trooper Daum and the driver went to the front of the vehicle to discuss the problem. From the front of the vehicle Trooper Daum observed appellee sitting in the front passenger seat slouched forward with his elbows on his knees and his hands between his legs. Another occupant was sitting in the rear passenger seat. Trooper Daum could not see any weapons.
While Trooper Daum was talking to the driver, Trooper Tomlinson approached the driver's side of the vehicle and observed a whiskey bottle through the window. Trooper Tomlinson opened the driver's side door to get a better look at the bottle, shined his flashlight into the car, and observed, wedged between the two front bucket seats, four to six inches of the middle part of a rifle barrel and the top part of the chamber, including the cocked hammer. The gun was obscured by the console between the two front seats and appellee, who was leaning over it with one arm draped over the butt of the rifle. According to Trooper Tomlinson, appellee was trying to keep him from seeing the rifle.
After observing the rifle, Trooper Tomlinson ordered appellee and the other occupant out of the vehicle. Appellee was then placed under arrest for carrying a concealed firearm. At that point, Trooper Daum frisked appellee, the driver and the other occupant of the vehicle. Trooper Daum found a shotgun cartridge and several rifle cartridges on appellee, several shotgun cartridges on the driver, and several .22 caliber cartridges on the other occupant. The troopers then looked in the vehicle for weapons corresponding to the ammunition found on the persons of the vehicle's occupants. Trooper Daum found an unlatched attache' case lying on the floor of the vehicle. The attache' case contained a sawed-off shotgun and a sawed-off rifle.
The automobile search which revealed the attache' case containing the two sawed-off weapons was clearly proper provided the arrest of appellee was valid. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Therefore, the sole issue for examination on appeal is whether probable cause existed to arrest appellee for carrying a concealed weapon. Specifically, we must decide whether the Marlin rifle was in fact a concealed firearm within the meaning of section 790.001(2), Florida Statutes (1981).
A firearm is concealed if it is 1) carried on or about a person and 2) hidden from the ordinary sight of another person. § 790.001(2), Fla.Stat. (1981); Ensor v State, 403 So.2d 349, 354 (Fla.1981). The term ...
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Dorelus v. State
...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 c......
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State v. Teague, AV-292
...is one for the trier of fact. The State relies upon such cases as Ensor v. State, 403 So.2d 349 (Fla.1981) and State v. Hankerson, 430 So.2d 517 (Fla. 2d DCA 1983) in which the courts determined that the question of whether a partial concealment of a weapon was within the "ordinary sight of......
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State v. Samuel Mcbride, 86-LW-2682
... ... See, ... Ensor v. State (Fla.1981), 403 So.2d 349, 354; ... State v. Hankerson (Fla.App.2 Dist.1983), 430 So.2d ... 517, 519, n. 2 ... In ... Ensor, the court dealt with the issue of whether a ... ...
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Carpenter v. State, 91-352
...the appellant. DAUKSCH and HARRIS, JJ., concur. 1 Section 790.01(1), Fla.Stat. (1989).2 The state suggests that State v. Hankerson, 430 So.2d 517 (Fla. 2d DCA 1983) supports a finding of concealment here. But this case is distinguishable from Hankerson where the accused made an attempt to a......