Summary
In McNair v. State, 354 So.2d 473 (Fla. 3d DCA 1978), the court held that the appellant was not "at his home" where he was thirty to thirty-five feet from his apartment.
Summary of this case from Sherrod v. StateOpinion
No. 77-800.
January 31, 1978.
Appeal from the Circuit Court, Dade County, Paul Baker, J.
Bennett H. Brummer, Public Defender and Mark King Leban, Sp. Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
Before HAVERFIELD, C.J., and HENDRY and NATHAN, JJ.
Curtis McNair appeals his conviction for carrying a concealed firearm and first urges as reversible error the denial of his motion to suppress the pistol seized from his apartment pursuant to a warrantless search where there were no exigent circumstances or other recognized exceptions to the warrant requirement.
The record reflects to the contrary. Officer Allen, who searched the apartment, testified that he observed McNair who was some 30 to 35 feet away from his apartment pull a pistol from his pocket, turn and walk about 15 feet and then throw the pistol to his wife standing on the porch in front of their apartment. She took the pistol and tossed it inside the apartment. Officer Allen, not knowing if anyone was in the apartment, became concerned for his safety and that of others based upon the possibility that someone could have been inside and could have access to the pistol. He thereupon removed McNair's wife who was blocking the entrance, entered the apartment and retrieved the pistol. This constituted sufficient evidence of exigent circumstances. See McGeehan v. Wainwright, 526 F.2d 397 (5th Cir. 1976); U.S. v. Bowdach, 414 F. Supp. 1346 (S.D.Fla. 1976).
McNair next argues that the court erred in denying his motion for judgment of acquittal because he was exempted from the crime charged in that he carried the firearm at his own home pursuant to Section 790.25(3)(n), Florida Statutes (1975).
This argument is without merit as McNair was carrying the pistol on his person when he was about 30 to 35 feet from his apartment. See Facion v. State, 290 So.2d 75 (Fla. 2d DCA 1974); Rash v. State, 331 So.2d 373 (Fla. 3d DCA 1976).
Affirmed.