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State v. Allende8/15/2001
tate v. Bell, 382 So. 2d 119 (Fla. 3d DCA 1980).
The trial judge relied for the opposite result upon Leahy v. State, 770 So. 2d 269, 270 (Fla. 4th DCA 2000), which held that the firearm in question had been unlawfully seized when, at the conclusion of a traffic stop, the defendant stated in answer to a trooper's question that he had "a gun in the car." Leahy, about which we have serious doubts even on its own facts, is, however, meaningfully distinguishable:
a. First, there was no indication in Leahy that, as here, the firearm was "unlawfully in the car." See Leahy, 770 So. 2d at 271 [e.s.](citing Whiting v. State, 595 So. 2d 1070 (Fla. 2d DCA 1992) for propositions that officer "had no information from which it could be inferred that the firearm was of an illegal type or that it was unlawfully possessed or displayed. Since merely possessing a firearm in a vehicle is not, by itself, a crime, the officer did not have a reasonable suspicion sufficient to justify the search of appellant's vehicle.")(citation omitted). In this case, in contrast, Allende's statement demonstrated that the gun was concealed in the vehicle and thus that "it was unlawfully possessed." Leahy, 770 So. 2d at 271 [e.s.];
b. Moreover, the seizure in Leahy occurred after the stop was over and thus implicated the constitutional prohibition against the improper prolongation of such a detention. See Shabazz, 993 F.2d at 431, supra; compare, e.g., United States v. Holt, 229 F.3d 931 (10th Cir. 2000). Here, the question and everything that followed took place during the lawful course of the stop itself. See United States v. Finke, 85 F.3d 1275 (7th Cir. 1996); United States v. McRae, 81 F.3d 1528 (10th Cir. 1996); United States v. McManus, 70 F.3d 990 (8th Cir. 1995); United States v. Crain, 33 F.3d 480 (5th Cir. 1994), cert. denied, 513 U.S. 1169, 115 S.Ct. 1142, 130 L.Ed. 2d 1102 (1995).
Reversed.
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