State v. Allende8/15/2001
An Appeal from the Circuit Court for Dade County, Victoria Platzer, Judge.
While the defendant was searching in the glove compartment for his registration after a concededly valid traffic stop for driving with an expired tag, Officer Fernandez, as he said he did in every such instance, asked Allende if he had any weapons in the car. Without further prompting, Allende said he had a gun "behind the passenger seat." The officer secured the weapon, a fully loaded handgun with thirteen rounds in the magazine and two additional clips, from within a pocket at the rear of the front passenger seat and removed it from the car. Fernandez then ran a computer check which revealed that Allende was a convicted felon. In the ensuing prosecution for possession of a firearm by a convicted felon and carrying a concealed firearm, the trial judge suppressed the firearm, rounds, and Allende's subsequent statements on Fourth Amendment grounds. The state appeals and we reverse on the holding that there was simply nothing constitutionally wrong with the manner in which the gun, and therefore the other evidence, was secured.
The burden of the defendant's argument, both below and on appeal, is that the officer had no "right" to ask the defendant the question which led to the seizure. This contention is wrong. In the first place, it is highly doubtful that a mere question has any constitutional implications whatever. See I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993)("At the outset, we reject any notion that a police officer's questioning, even on a subject unrelated to the purpose of the stop, is itself a Fourth Amendment violation . . . . Mere questioning . . . is neither a search nor a seizure."); Gomez v. State, 517 So. 2d 110 (Fla. 3d DCA 1987). Even if arguendo it did, the question was obviously appropriately incidental to the proper conduct of any Terry or traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); U.S. v. Oates, 560 F.2d 45 (2nd Cir. 1977); Gomez, 517 So. 2d at 110 (officer's question "where are you from," addressed to defendant after a valid traffic stop for lane straddling and suspected DUI, was constitutionally authorized as part of proper conduct of traffic stop); State v. Ruiz, 526 So. 2d 170 (Fla. 3d DCA 1988)(officer who had effected valid Terry stop of suspect found at scene of cocaine transaction properly inquired if suspect had a gun), review denied, 534 So. 2d 401 (Fla. 1988), review denied, 488 U.S. 1044, 109 S.Ct. 872, 102 L.Ed.2d 995 (1989); State v. Williams, 371 So. 2d 1074 (Fla. 3d DCA 1979), cert. denied, 381 So. 2d 771 (Fla. 1980). Indeed, the generalized potential danger presented by even the possibility of a firearm in the car provides constitutional justification for far greater intrusions into the freedom of any driver (or passenger) in a traffic stop than the simple question involved in this case. See Mimms, 434 U.S. at 106, 98 S.Ct. at 330; Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). These authorities apply a fortiori to this case.
It is also clear--and the defendant does not seem to argue otherwise--both that (a) after Allende volunteered that he had a gun, which was concealed in the vehicle, there was probable cause that he had committed the felony of C.C.F. so as to justify an outright arrest and seizure at that point, see Ruiz, 526 So. 2d at 170; Williams, 371 So. 2d at 1074, and (b) the subsequent computer check which revealed that the defendant had committed the additional felony for which he was also prosecuted was likewise constitutionally appropriate. See United States v. Simmons, 172 F.3d 775 (11th Cir. 1999); S
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