
    STATE of Florida, Appellant, v. Lewis Abayomi TEAGUE, Appellee.
    No. AV-292.
    District Court of Appeal of Florida, First District.
    May 22, 1984.
    Rehearing Denied June 27, 1984.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., for appellant.
    Harold C. Arnold, of Hooten, Donohoe & Arnold, Jacksonville, for appellee.
   WIGGINTON, Judge.

The State appeals an order granting ap-pellee’s motion to dismiss the charge against him of carrying a concealed firearm. We affirm.

The State first argues that since it filed a traverse to appellee’s motion to dismiss, alleging disputed material facts, the trial judge was obligated to deny the motion. State v. Huggins, 368 So.2d 119 (Fla. 1st DCA 1979). However, contrary to the State’s contention, its traverse failed to controvert any specific material allegation of the motion to dismiss and, in fact, appel-lee accepted the facts alleged therein as correct. Thus, the trial judge was not required to deny automatically the motion. State v. Holliday, 431 So.2d 309 (Fla. 1st DCA 1983).

The State’s second argument presents the novel question of whether a weapon can be considered concealed, pursuant to section 790.001(2), by the mere fact that it was not visible through the tinted windows of an automobile. The undisputed facts show that on June 18, 1983, at approximately 9:35 p.m., Officer Leaptrot of the Duval County Sheriff’s office stopped ap-pellee for driving without headlights. Ap-pellee exited his vehicle and met the officer behind it. When the officer requested to see his driver’s license, appellee unhesitatingly opened the left rear door of his car to retrieve the license from the pocket of some clothing there. When appellee opened the door, Officer Leaptrot saw the muzzle portion of a rifle, which was lying uncovered on the front seat of the car.

The sole alleged probable cause for arresting appellee and charging him with carrying a concealed firearm, pursuant to section 790.001(2), Florida Statutes, was the fact that the car had tinted windows through which in the “ordinary sight of another person,” the firearm could not be seen. In his motion, appellee asserted that the above facts did not establish a prima facie case of guilt, to which the State responded in its traverse that the question of concealment is one for the trier of fact. The State relies upon such cases as Ensor v. State, 403 So.2d 349 (Fla.1981) and State v. Hankerson, 430 So.2d 517 (Fla. 2d DCA 1983) in which the courts determined that the question of whether a partial concealment of a weapon was within the “ordinary sight of another person” within the meaning of section 790.001(2) should be deferred to the trier of fact.

We decline to apply the principles of En-sor and Hankerson to the facts of the instant case. Unlike the defendants in those cases, appellee undisputedly did not have his gun covered in any manner but instead merely had it lying openly on the front seat of his car. Only the tinted windows obstructed it from view. A certain degree of tinting on motor vehicle windows has been approved by the Florida Legislature. Chapter 316, Fla.Stat. The record before us contains no allegation or evidence that appellee’s tinted windows failed to meet the specifications of chapter 316. Therefore, we must assume that appelleé was driving a “legal” vehicle.

We are appreciative of law enforcement’s proven fears concerning the use of tinted glass on vehicles, and are reluctant to endorse the legislature’s approval of darkly tinted windows on motor vehicles. Nonetheless, we decline to rule that, by the mere fact of appellee’s vehicle sporting “legal” tinted windows, his act of carrying a firearm openly on the front seat of his car, in a manner that would be legal in a car that did not have tinted windows, could constitute the crime of carrying a concealed weapon.

The trial judge was correct in granting appellee’s motion to dismiss under the circumstances. However, we certify the following question to the Supreme Court of Florida as one of great public importance under Fla.App.R. 9.030(a)(2)(A)(v):

DOES THE CARRYING OF A FIREARM BY THE OCCUPANT OF A MOTOR VEHICLE HAVING TINTED WINDOW GLASS WHICH PREVENTS THE FIREARM FROM BEING VISIBLE WITHIN THE ORDINARY SIGHT OF PERSONS OUTSIDE THE VEHICLE, ALTHOUGH THE FIREARM IS OTHERWISE IN CLEAR VIEW AND UNCONCEALED, CONSTITUTE THE OFFENSE OF CARRYING A CONCEALED FIREARM UNDER SECTION 790.01(2), FLORIDA STATUTES? AFFIRMED.

SMITH, J., concurs specially with written opinion.

NIMMONS, J., dissents with written opinion.

SMITH, Judge,

specially concurring.

I concur in the result reached in Judge Wigginton’s opinion, and write only to express briefly the basis upon which I feel the trial court’s ruling should be affirmed.

First, I find some merit in the state’s position that one carrying an otherwise openly visible firearm within easy reach inside a vehicle with darkly tinted windows may be considered as “carrying” a “concealed weapon.” I am unpersuaded by the argument that since darkness would prevent one from seeing inside a car even with clear windows, the tinted windows on this occasion did not conceal the weapon from ordinary view. The same argument could be made of a person carrying a weapon inside a coat or trousers pocket, in the dark. Although persons ordinarily do not see in the dark, the offense may nevertheless be committed in one’s presence, but simply remain undetected until such time as sufficient light from some source or another — headlights, streetlight, flashlight — makes it possible to determine that the carried weapon is not visible. It is noted that in Ensor v. State, 403 So.2d 349 (Fla.1981), the police officer’s after-dark observation of the gun was made possible only by the use of his flashlight.

I am also unpersuaded by the fact that tinted windows are “legal.” Coats and trousers are also “legal,” but this does not legalize the carrying of weapons concealed within either.

However, there are other reasons for affirmance. I would conclude, first, that .the term “concealed,” as used in the statutory definitions, Section 790.001(2) and (3)(a), and in Section 790.01 (Florida Statutes), defining the offense itself, was intended to be read and interpreted in accordance with its usual and ordinary meaning. A review of the decided cases in Florida discloses that the issue, so far as “concealment,” is concerned, has been viewed as one of determining whether there has been a hiding of the weapon itself in some manner, such as by covering with some material or object, or by placing it in a container or within the clothing, or by placing the weapon in or about some object near but accessible to the person so as to be hidden from ordinary view. See, for example, Powell v. State, 369 So.2d 108 (Fla. 1st DCA 1979) (handle of firearm protruding from rear pants pocket); State v. Riocabo, 372 So.2d 126 (Fla. 3rd DCA 1979) (portion of pistol observed inside defendant’s purse); McGraw v. State, 387 So.2d 444 (Fla. 1st DCA 1980) (pistol partially covered by wet suit on front seat of car); Ensor v. State, supra (portion of what proved to be a derringer protruding from under car seat).

We would seem to be taking a giant leap should we expand the scope of this statutory offense, the crux of which is concealment of the weapon itself, to encompass circumstances under which the weapon is deemed “concealed,” because the carrier himself is “concealed.” I do not believe that expansion of the offense to embrace the latter circumstance is warranted under the statute as presently written.

I am mindful of and deeply concerned that the roving, opaque-windowed motor vehicle is potentially one of the most convenient instruments of crime that could ever be set loose in our society. On the other hand, a great many law-ab.iding citizens obviously find that darkly tinted glass in their vehicles serves desirable and legitimate purposes. I do not feel that it was envisioned by the legislative body at the time the concealment statute was passed, nor at the time of its most recent amendments, that refinements such as the blacked-out car window would have the effect of transforming the otherwise lawful possession of a firearm into a felony of the third degree. I further conclude that the issue is not simply a matter of technical, legal interpretation, but is one in which policy considerations would weigh heavily, no matter what the final answer might be. The matter would seem to be one peculiarly within the province of the legislature, and it would seem to me to be one of such magnitude and importance that it is not likely to be long ignored on the state, or possibly even on the national level. But in any event? it would seem to me that the multitudes of owners who have darkened windows on their cars, vans or trucks, should have the benefit of the increased notoriety that would attend a legislative enactment so severely restricting their right to the otherwise lawful carrying of firearms or other weapons within their vehicles.

I have some reservations concerning our decision to affirm the trial court because of the language found in the Supreme Court’s opinion in Ensor v. State, supra, 403 So.2d at page 355, quoted in footnote 1 above. The emphasized wording seems to support the state’s position here. Notwithstanding this language used by the court, which would seem to furnish an appropriate guide under most circumstances, it would appear to me that a prosecution based upon the state’s “darkened window” theory should be governed by law, and not left to the triers of fact on a ease-by-case basis. For that reason I also concur with Judge Wig-ginton that the question posed in his opinion be certified pursuant to Florida Appellate Rule 9.030(a)(2)(A)(v).

NIMMONS, Judge,

dissenting.

I respectfully dissent.

I have no difficulty, based upon applicable statutory and case authority, in concluding that a person who operates a motor vehicle with a firearm on the front seat which firearm, by reason of darkly-tinted windows, is hidden from the ordinary sight of another person, is in violation of Section 790.01(2) which proscribes carrying a concealed firearm.

The instant case presents an issue to be resolved by the trier of fact, that is, whether the firearm was hidden or concealed from the ordinary sight of a person outside the vehicle. As the court in Ensor v. State, 403 So.2d 349, 355 (Fla.1981), observed:

The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case. (Emphasis supplied.)

What would be our decision if the defendant had been walking around carrying a darkly-tinted glass or plastic container with a firearm inside? Of course, he would be guilty of carrying a concealed firearm. Cf. Rogers v. State, 336 So.2d 1233 (Fla. 4th DCA 1976) (carrying closed briefcase containing firearm). Why should it be any different simply because he carries the firearm on the front seat of his automobile which he has chosen to equip with darkly-tinted windshields? Like Judge Smith, I am unimpressed by the argument that a certain degree of windshield tinting has been approved by the Florida Legislature and that the record in this case does not indicate whether the defendant’s windows met the specifications of Chapter 316. To me, whether the windows met such specifications is irrelevant to the issue of whether the defendant was carrying a firearm which was hidden from the ordinary sight of another person situated or standing outside the vehicle.

I share the majority’s concern for the safety and security of police officers who are called upon to confront vehicles with darkly-tinted windows under a variety of circumstances. Traffic stops and automobile detentions are high-risk encounters for police officers. According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963). The study says that of police officers shot in connection with vehicle stops, about half were shot by persons seated in or concealed in a car, about a third by persons standing outside the car talking to the police, and the rest by persons then exiting the car or fleeing the scene. See also 3 LaFave, Search & Seizure § 9.4 (1984 Supp.); Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972); Michigan v. Long, — U.S. -, - n. 13, 103 S.Ct. 3469, 3479 n. 13, 77 L.Ed.2d 1201, 1219 n. 13, (1983). I am aware of no studies which have considered the additional factor involving motor vehicles with darkly-tinted windows. However, it seems obvious that the risks attendant to vehicular stops are appreciably greater where vehicles with darkly-tinted windows are involved. The majority’s decision, which is in my view erroneous, will, I fear, only compound the problem by placing the court’s imprimatur upon the practice of carrying a firearm on the front seat of a motor vehicle even though the windows are so dark that the firearm is hidden from the ordinary sight of a person standing outside the vehicle, a situation which I believe to be proscribed by Section 790.01 as construed by the Supreme Court in Ensor, supra.

I would reverse the trial court’s order granting the defendant’s motion to dismiss and remand for trial. I do, however, concur with the majority’s decision to certify the issue as one of great public importance. 
      
      . See, Ensor v. State, 403 So.2d 349 (Fla.1981), in which the court stated (at page 355):
      The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case, (emphasis supplied)
     
      
      . Not only does the possession of weapons inside such vehicles pose a threat to law enforcement personnel in the ordinary discharge of their duties — not to mention the danger to the unsuspecting citizen — but the identification of persons inside suspect vehicles is rendered extremely difficult, if not impossible. The countless cases in which alert police officers have been able to spot and apprehend criminal violators speeding away from crime scenes bears witness, I believe, to the impediment to law enforcement presented by these darkened windows.
     
      
      . Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity. Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).
     