STATE V. HERRON

State: Florida

Court: Florida Third District Court

Docket No: 10-2538

Case Date: 08/10/2011

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2011
Opinion filed August 10, 2011. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-2538 Lower Tribunal No. 09-28802 ________________

The State of Florida,
Appellant, vs.

Dwight Herron,
Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Nushin G. Sayfie, Judge. Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellant. Carlos J. Martinez, Public Defender, Howard K. Blumberg, Assistant Public Defender, and Michael A. Vera and Nicholas A. Reed, Certified Legal Interns, for appellee.

Before WELLS, C.J.,* and SHEPHERD, J., and SCHWARTZ, Senior Judge. SHEPHERD, J.

Chief Judge Wells did not participate in oral argument.

The State of Florida appeals an order granting the defendant's, Dwight Herron, motion to suppress a firearm seized from his person following a traffic stop. We affirm the order of the trial court. After executing a valid routine traffic stop, Miami-Dade County Police Officer Robert McGrath ordered Herron out of his vehicle, and to place his hands on top of the roof for the purpose of an external pat-down search. After Herron placed his hands on the roof of the vehicle, Officer McGrath observed a bulge on the small of Herron's back. The pat-down and subsequent search revealed the bulge to be a holster and firearm. Upon a lawful traffic stop, a police officer may order the driver out of his vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (finding a police officer's order for the defendant to exit a vehicle to be a de minimis intrusion into the driver's personal liberty). However, such a stop does not, in and of itself, give rise to a valid reason for a weapons pat-down. See Richardson v. State, 599 So. 2d 703, 705 (Fla. 1st DCA 1992). Such a pat-down is authorized only where the officer has a reasonable suspicion to believe the suspect is armed with a dangerous weapon. See

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