State v. Hardy
| Decision Date | 04 December 1992 |
| Docket Number | No. 92-541,92-541 |
| Citation | 610 So.2d 38 |
| Parties | 17 Fla. L. Week. D2708 STATE of Florida, Appellant, v. Solomon HARDY, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellant.
James B. Gibson, Public Defender and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellee.
The State of Florida appeals from the trial court's order suppressing evidence seized from an automobile driven by Solomon Hardy. We affirm.
During the hearing on Hardy's motion to suppress, Officer Anthony Esoff of the Sanford Police Department testified that on May 1, 1991, he stopped Hardy for speeding at approximately 4:00 AM. Officer Esoff ran a license check on Hardy and gave Hardy a verbal warning about speeding, but wrote a citation against Hardy for failing to produce proof of insurance. Officer Esoff asked Hardy to step out of the car to sign the citation.
At about this time, Officer Daryl Brewer arrived at the scene and began conducting a safety search of the car with a flashlight by looking through the windows and the windshield. In the meantime, Hardy signed the citation and Officer Esoff explained to Hardy how to correct the insurance problem. Officer Esoff told Hardy that he had noticed a suspicious looking gym bag on the floorboard and asked Hardy if he could search the car. After being told that the search was voluntary and that he could say no, Hardy said that he did not want his car searched.
At that point, Officer Brewer pulled Officer Esoff aside and told him that a knife in a sheath appeared to be on the floorboard between the driver's seat and the driver's door. At the suppression hearing, Officer Brewer testified:
A. While Officer Esoff was writing the ticket, I was standing off to the side on the grass to the right of the vehicles just keeping an eye on Mr. Hardy who was a loan [sic] passenger in the vehicle.
After he was requested to get out and go to the back of his car by Officer Esoff. I proceeded to walk around his car shining my light inside the interior looking for any weapons for officer's safety.
Q. Sure.
A. After I got around to the driver's side, I shined my light through the windshield illuminating the area of the floorboard underneath the front seat and then along between where I could see partially between the driver's seat and driver's door.
Q. Was the door to the car at this point open or closed?
A. It was closed.
Q. All right. What did you see?
A. I saw what appeared to be the handle of a large hunting-type knife lying on the floor between the seat and the door.
Q. Okay. What, if anything, did you do at that point?
A. After continuing on looking on around through there, I went back and had Officer Esoff step aside from Mr. Hardy and informed him of what I had seen.
Q. Did you at any time open the door?
A. No.
Q. Did you at any time move that knife and put it in someplace where you could see it?
A. No, sir.
Officer Esoff similarly testified:
About that time Officer Brewer was walking back towards my car towards us, and he, you know, told me to come to the side, and he had told me that he had--a knife in a sheath appeared to be laying on the floorboard between the driver's seat and the driver's door partially under the door.
Q. Did you go and look at it?
A. Yes, I did.
Q. Explain to the Court exactly where it was in the car in relation to seats and floorboards and doors.
A. We were looking through the front windshield with the aid of a flashlight, and looking through the front windshield you could see the handle, the knife handle, lying on the floorboard. The sheath part was partially underneath the seat. That's the best I can describe it.
Officer Esoff then arrested Hardy for carrying a concealed weapon. Pursuant to the arrest, Officer Esoff searched Hardy's car and found a loaded sawed-off shotgun with shells in the gym bag.
After the suppression hearing, the trial court entered a written order granting Hardy's motion to suppress. In the order, the trial court found:
In this case the knife was visible for anyone to see who looked for it. It was, therefore, not concealed. Since the defendant committed no crime, the search of the vehicle incidental to his arrest was unauthorized and the short barreled shotgun seized during the search is not admissible in evidence.
The trial court then suppressed the shotgun as evidence.
We begin our analysis with the leading Florida Supreme Court case of Ensor v. State, 403 So.2d 349 (Fla.1981). In Ensor, the undisputed facts are that following a traffic stop and in accordance with normal police procedure, one officer peered through the front windshield of Ensor's car and spotted a portion of a white object protruding from under the left side of the passenger floormat. The officer was unable to identify the object until he squatted and looked through the already-opened passenger door. At that point, the officer determined the object was a derringer pistol, which he seized.
In its opinion, the Ensor court considered section 790.001(2), Florida Statutes, which defines a 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." 1 Id. at 353. The court explained:
The term "ordinary sight of another person" means the casual and ordinary observation of another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible.
These statements are not intended as absolute standards. Their purpose is to make it clear that a weapon's possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under section 790.001.... In all instances, common sense must prevail. The 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 354-55 (emphasis added). Under the facts in Ensor, the court ultimately held that the firearm was wrongfully suppressed.
The Second District Court of Appeal also addressed the issue of concealment in Gibson v. State, 576 So.2d 899 (Fla. 2d DCA 1991). In Gibson, a police officer stopped a vehicle for a traffic violation. After approaching the vehicle, the officer shined his flashlight into the vehicle's interior and detected the handle of a large knife on the floorboard. Based on the officer's testimony, the court held that the knife was not concealed because the officer knew that the object, a machete, was a large knife when he saw it on the floorboard. The Second District then reversed the trial court's order denying Gibson's motion to suppress.
Thus, given a different set of facts, the Gibson court came to a different result from the Ensor court. The Gibson court relied on this court's opinion in Cope v. State, 523 So.2d 1270 (Fla. 5th DCA), review denied, 531 So.2d 1355 (Fla.1988). In Cope, two police officers stopped a truck for a traffic infraction. One officer, who had shined his flashlight into the cab of the truck, testified during a hearing that he saw in plain view on the front seat the butt of a weapon that he immediately recognized as a handgun. The...
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State v. Paul
...trial judge's ruling comes to us clothed with the presumption of correctness. Smith v. State, 378 So.2d 281 (Fla.1979); State v. Hardy, 610 So.2d 38 (Fla. 5th DCA 1992), review denied, 621 So.2d 433 (Fla.1993). We should not reweigh the evidence and substitute our factual findings for that ......
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...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 i......
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State v. K.S., 96-1352
...trial judge's ruling comes to us clothed with the presumption of correctness. Smith v. State, 378 So.2d 281 (Fla.1979); State v. Hardy, 610 So.2d 38 (Fla. 5th DCA 1992), rev. denied, 621 So.2d 433 (Fla.1993). I would affirm because the police had no probable cause for arrest and no basis fo......
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State v. Smith, 92-1097
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