FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Renee A. Roche,
S. Purdy, Public Defender, and Kevin R. Holtz, Assistant
Public Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan,
Assistant Attorney General, Daytona Beach, for Appellee.
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 Terry stop and frisk. We agree and
reverse, concluding that the officer did not have reasonable
suspicion of illegal activity to justify a Terry
Terry Stop and Arrest in this Case
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.
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.
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
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
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.
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).
Fourth Amendment: Terry and Suspicion of a ...