Timothy E. Burnett v. State , 246 So. 3d 516 ( 2018 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
TIMOTHY EUGENE BURNETT,
Appellant,
v. Case No. 5D16-2615
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed May 4, 2018
Appeal from the Circuit Court
for Orange County,
Renee A. Roche, Judge.
James S. Purdy, Public Defender, and
Kevin R. Holtz, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Lori N. Hagan, Assistant
Attorney General, Daytona Beach, for
Appellee.
EISNAUGLE, J.
Appellant, Timothy Eugene Burnett, appeals his judgments and sentences in two
cases, contending that the trial court erred in denying his dispositive motions to suppress
a firearm discovered during a Terry1 stop and frisk. We agree and reverse, concluding
that the officer did not have reasonable suspicion of illegal activity to justify a Terry stop.
The Terry Stop and Arrest in this Case
Appellant was arrested for possession of a firearm by a convicted felon while he
was still on probation for a prior offense, and as a result, was charged with both a new
law violation and a violation of his probation. Prior to entering a plea in both cases,
Appellant moved to suppress the firearm, arguing that the arresting officer did not have
reasonable suspicion to conduct a Terry stop.
The trial court held an evidentiary hearing where the arresting officer testified that
a restaurant employee called in a tip that a customer appeared to have a gun in his
waistband, but the employee “didn’t know exactly what it was.” The employee did not
actually see a firearm, nor does the record indicate that Appellant removed or displayed
a firearm in any way.
The officer responded and identified Appellant in the parking lot as the individual
described by the employee. While Appellant was on his phone and standing next to his
car, the officer approached and observed a “bulge” in Appellant’s clothing. Believing the
bulge to be a concealed firearm, the officer “began to pat [Appellant] down, at which point
[Appellant] moved away and tensed up.”
Upon conducting the pat-down, the officer immediately knew that the bulge was a
firearm, but only determined that Appellant was a felon after the stop and frisk was
completed. Likewise, the officer did not know if Appellant had a concealed weapons
1 Terry v. Ohio, 392 U.S. 1 (1968).
2
permit before conducting the Terry stop, and conceded that he did not observe any illegal
conduct. The trial court denied Appellant’s motions, and this appeal follows.
Standard of Review
“[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed
with a presumption of correctness.” Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002).
The trial court’s factual findings “will be upheld if supported by competent, substantial
evidence, while the court’s legal determinations are reviewed de novo.” Vangansbeke v.
State, 223 So. 3d 384, 386 (Fla. 5th DCA 2017).
The Fourth Amendment: Terry and Suspicion of a Concealed Firearm
The Fourth Amendment guarantees the right of the people to be free from
unreasonable searches and seizures. Amend. IV, U.S. Const.; see Terry, 392 U.S. at 8.
When evaluating the reasonableness of a stop and frisk, as occurred in this case, we
apply the two-pronged test adopted by the United States Supreme Court in Terry. Terry,
392 U.S. at 15, 30–31.
First, Terry established that, in order to conduct an investigatory stop consistent
with the Fourth Amendment, law enforcement must have a reasonable suspicion that
“criminal activity may be afoot.” Id. at 30; see also Saturnino-Boudet v. State, 682 So. 2d
188, 191 (Fla. 3d DCA 1996) (“A Terry stop is permissible if the detention is temporary
and reasonable under the circumstances and only if the police officer has a wellfounded
suspicion that the individual detained has committed, is committing, or is about to commit
a crime.” (citing Terry, 392 U.S. at 30; Reynolds v. State, 592 So. 2d 1082 (Fla. 1992))).
Reasonable suspicion must be based on “specific and articulable facts” and not on
“inchoate” “unparticularized suspicion” or mere “hunch.” Terry, 392 U.S. at 21, 27; see
3
Price v. State, 120 So. 3d 198, 200 (Fla. 5th DCA 2013). The required “reasonable
suspicion of criminal activity may result from viewing exclusively legal activity, but it
depends upon the totality of the circumstances.” Regalado v. State, 25 So. 3d 600, 604
(Fla. 4th DCA 2009).
“Second, to proceed from a stop to a frisk, the police officer must reasonably
suspect that the person stopped is armed and dangerous.” Arizona v. Johnson, 555 U.S.
323, 326–27 (2009); see Terry, 392 U.S. at 30–31.
Appellant asserts that the stop and frisk in this case was constitutionally invalid
under Terry’s first prong. Specifically, he argues that carrying a concealed firearm is not
sufficient, without more, to justify a Terry stop, relying on the fourth district’s decision in
Regalado and the second district’s decision in Slydell v. State, 43 Fla. L. Weekly D594
(Fla. 2d DCA Mar. 14, 2018). We agree.
In Regalado, the court held that concealed possession of a firearm alone does not
give rise to reasonable suspicion of criminal activity. 25 So. 3d at 606. In that case, the
state argued that officers may conduct a valid Terry stop where they observe, without
more, a bulge in the defendant’s clothing resembling a gun. Id. at 604. In rejecting the
state’s argument, the court reasoned:
Possession of a gun is not illegal in Florida. Even if it is
concealed, it is not illegal if the carrier has obtained a
concealed weapons permit. Although the officer observed a
bulge in [the defendant’s] waistband, which in his experience
looked like a gun, no facts and circumstances were presented
to show that [the defendant’s] carrying of a concealed weapon
was without a permit and thus illegal.
4
REVERSED and REMANDED.
PALMER and WALLIS, JJ., concur.
8
In Mackey, the Florida Supreme Court considered whether a police officer had
reasonable suspicion to conduct a Terry stop based on a belief that the defendant was
carrying a concealed firearm. While on patrol in an area known for illegal firearms and
narcotics, the officer in that case observed a bulge in the defendant’s pocket with "a piece
of the handle sticking out." 124 So. 3d at 179. Based on that observation and his training
and experience, the officer identified the object as a firearm. Id. The officer approached
the defendant and asked if he had anything on him, and the defendant said “no.” Id.
Knowing that was a lie, the officer patted the defendant down, retrieved the firearm, and
arrested him for illegally carrying a concealed firearm. Id.
The defendant moved to suppress the evidence, arguing, in part, that the officer
lacked a reasonable suspicion to conduct a Terry stop. Id. at 179–80. After the trial court
denied his motion to suppress, he pled guilty and appealed the denial of his motion. Id.
at 180. The third district affirmed, holding the officer’s suspicion that the defendant was
carrying a concealed firearm was by itself sufficient to justify a Terry stop and frisk, and
certified conflict with Regalado. Id. at 181.
On review, the supreme court affirmed but disagreed with the third district’s
reasoning. Rather than basing its decision on the defendant carrying a concealed firearm,
the court instead considered the totality of the circumstances, and explained:
When the person blatantly lied to the police officer here about
possession of a firearm while he was in a geographic area
well known for illegal narcotics and firearms with the weapon
in view, we conclude that the officer had a reasonable,
articulable suspicion that the person may have been
engaged in illegal activity, and this brief detention to further
investigate whether a crime was being committed is
constitutionally valid.
6
Id. at 184. Thus, contrary to the State’s argument, Mackey supports the proposition that,
consistent with Regalado and Slydell, something more than suspicion of a concealed
firearm is required to validate a Terry stop.
The Constitutionality of the Stop in this Case
In this case, the tipster did not see Appellant brandish or improperly display the
firearm. Likewise, the arresting officer conceded that he did not see any illegal or
threatening activity and did not know Appellant was a convicted felon. Appellant was not
prowling or casing an establishment as in Terry. Unlike in Mackey, he did not lie to the
investigating officer, and there is no record evidence that the stop occurred in a high-
crime area known for drugs or illegal weapons. See Mackey, 124 So. 3d at 184–85. The
officer here did not testify that Appellant fled or otherwise acted suspiciously upon seeing
law enforcement. In fact, the State cites to no evidence in the record, and we have found
none, that the tipster or officer observed any furtive behavior at all.
Although we acknowledge that a Terry stop can be based upon an observation of
entirely legal activity,2 there must be something about the circumstances, when
considered in total, that reasonably raises a suspicion that a crime has been or is being
committed. Indeed, reasonable suspicion could be based on the totality of any number
of factual circumstances too numerous to catalog here. However, there is no such
evidence in this record. Thus, given the law in Florida, and consistent with Mackey,
Regalado, and Slydell, we hold that possession of a concealed firearm, without more,
does not justify a Terry stop. We therefore reverse and remand with instructions for the
trial court to vacate Appellant's convictions and sentences and reinstate his probation.
2 Regalado, 25 So. 3d at 604.
7
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
TIMOTHY EUGENE BURNETT,
Appellant,
v. Case No. 5D16-2615
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed May 4, 2018
Appeal from the Circuit Court
for Orange County,
Renee A. Roche, Judge.
James S. Purdy, Public Defender, and
Kevin R. Holtz, Assistant Public Defender,
Daytona Beach, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Lori N. Hagan, Assistant
Attorney General, Daytona Beach, for
Appellee.
EISNAUGLE, J.
Appellant, Timothy Eugene Burnett, appeals his judgments and sentences in two
cases, contending that the trial court erred in denying his dispositive motions to suppress