Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burnett v. State

Florida Court of Appeals, Fifth District

May 4, 2018

TIMOTHY EUGENE BURNETT, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          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 Terry[1] 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 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.