Third District Court of Appeal
State of Florida
Opinion filed August 5, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D24-1602
Lower Tribunal No. F23-10837
State of Florida,
Appellant,
vs.
Zachery Brandon Lyles,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Laura Anne Stuzin, Judge.
James Uthmeier, Attorney General, and Kayla Heather McNab,
Assistant Attorney General, for appellant.
Daniel A. Callahan, P.A., and Daniel A. Callahan (Ft. Lauderdale); Cohen & McMullen, P.A., and Bradford M. Cohen (Ft. Lauderdale), for appellee.
Before MILLER and GOODEN, JJ., and KOENIG, Associate Judge.
KOENIG, Associate Judge.
The State appeals an order suppressing a firearm that Detective
Carlos Corvo discovered on Zachery Brandon Lyles during a lawful
investigatory stop. Having assumed the stop was lawful, the trial court
suppressed the weapon on the ground that Detective Corvo lacked a
reasonable belief that Lyles was armed and dangerous. Because the totality
of the circumstances supplied that belief, we reverse and remand for further
proceedings consistent with this opinion.
BACKGROUND AND PROCEDURAL HISTORY
In May 2023, Detective Carlos Corvo was on routine patrol when
dispatch reported shots fired aboard a charter vessel near the docks.
Dispatch broadcast a be-on-the-lookout (BOLO) description of the suspected
shooter: a black male in his thirties wearing a white hat, a blue shirt, and tan
shorts. As Detective Corvo responded, he encountered Lyles walking from
the direction of the docks and matching the BOLO description. When
Detective Corvo made eye contact, Lyles placed his hand on the waistband
of his shorts and adjusted a bulge. Detective Corvo drew his firearm, ordered
Lyles to raise his hands, and reached out and touched the bulge before lifting
the shirt to reveal a firearm. The stop and the lifting of the shirt occurred
simultaneously. Officers detained Lyles and placed him into custody.
2
Lyles was arrested and charged with one count of shooting/throwing a
deadly missile, one count of possession of a firearm by a convicted felon,
one count of using/displaying a firearm while committing a felony, and one
count of discharging a firearm in public. He moved to suppress the firearm,
asserting that Detective Corvo lacked the reasonable suspicion and probable
cause necessary to seize him and conduct a search.
During a hearing, Detective Corvo testified as follows:
• On May 28, he received a call regarding “shots being fired in the area
of the 4400 block” on a yacht parked at the docks and responded to
the area.
• Dispatch provided a BOLO for “a Black male in his 30s with a white
hat, blue shirt, and tan shorts.”
• As Detective Corvo walked towards the area of the shooting, he saw a
man matching the description of the BOLO: “[T]hey matched the
clothing and physical description. And then on top of that, once I made
eye contact with that individual I immediately noticed that there was a
bulge on the right side of their body and that their hand immediately
went to that area and began adjusting it.”
• As he approached the individual (Lyles), Detective Corvo took out his
firearm and told Lyles to “put [his] hands up.” Detective Corvo then
“reached towards the bulge on the outside of the shirt,” “touched it,”
and “immediately felt that it was a firearm.” He “[l]ifted the shirt,
removed the firearm, and [Lyles] was placed in custody.”
Before closing arguments, the trial court instructed the parties to
assume that Detective Corvo had conducted a proper investigatory stop
based on the BOLO.
3
The defense accepted that instruction. It maintained, however, that
lifting the shirt at the very moment of the stop was an unlawful search
because there was not “enough PC to do so. There wasn’t reasonable
suspicion to do so.” The defense emphasized that Lyles was accompanied
by three women; that he was not nervous, running, or sweating; and that
Detective Corvo neither coordinated with other officers about other suspects
nor asked Lyles any questions before lifting the shirt.
The trial court again directed the parties to assume that the Terry stop
was proper.
The State responded that the search was lawful “because it was limited
in scope and conducted only to the extent necessary to disclose the weapon
and secure the safety of all the officers there.” In its view, the statutory
“probable cause” standard was satisfied: Detective Corvo was responding to
“a shots fired call,” and, upon encountering Lyles, who matched the BOLO
description, he “saw a bulge of what he believed to be [a] firearm.”
In rebuttal, the defense reiterated that, because Detective Corvo lifted
the shirt simultaneously with the stop and without questioning Lyles, no
lawful pat-down had occurred.
At the close of the hearing, the trial court granted the motion to
suppress.
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ARGUMENT ON APPEAL
The State contends that the BOLO description, combined with the
report of shots fired, was legally sufficient to establish reasonable suspicion,
and that Detective Corvo’s immediate observation of the bulge at Lyles’
waistband confirmed that suspicion.
Lyles responds on several grounds. First, he argues that a fellow
officer’s radio call—made after Lyles was handcuffed and suggesting that
the officers did not yet know whether Lyles was connected to the shooting—
undermines the credibility of the officer who removed the weapon. He
contends that the trial court reached essentially the same conclusion in ruling
as it did.
He further argues that the BOLO lacked sufficient detail; that Detective
Corvo never testified to any experience and/or training that would allow him
to identify the bulge as a firearm; and that Detective Corvo placed the
recovered gun on the sidewalk in front of Lyles and did not search him for a
second weapon, which, Lyles says, shows that the professed concern for
safety was disingenuous. Finally, Lyles argues that the body-camera video
shows none of the furtive movements the officer described, and that the
evidence that law enforcement was stopping other black men suggests he
was not stopped because he matched the BOLO.
5
ANALYSIS
Under Florida’s “Stop and Frisk Law” a law enforcement officer is
authorized to temporarily detain an individual whenever he or she
“encounters any person under circumstances which reasonably indicate that
such person has committed, is committing, or is about to commit a violation
of the criminal laws of this state or the criminal ordinances of any municipality
or county.” § 901.151(2), Florida Statutes (2023). This investigatory stop (or
“Terry-stop”) “requires that the officer possess a reasonable suspicion that
the citizen has committed, is committing, or is about to commit a crime in
order to support the detention.” State v. Cruse, 121 So. 3d 91, 95 (Fla. 3d
DCA 2013) (emphasis added) (citing § 901.151(2), Fla. Stat.; see also
Goodman v. State, 280 So. 3d 537, 543 (Fla. 2d DCA 2019) (“The
reasonableness of the officer's suspicion depends upon the totality of the
circumstances, including the officer's training and experience.”). Because an
investigatory stop “affects the suspect’s Fourth Amendment rights, it invokes
constitutional safeguards, and the stop must be supported by an officer's
well-founded, articulable suspicion of criminal activity.” Cruse, 121 So. 3d at
96.
Here, the trial court instructed the parties to assume that the BOLO
justified the Terry stop. The court thereby accepted that Detective Corvo had
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reasonable suspicion of criminal activity sufficient to detain Lyles
temporarily—that is, that the detention itself was lawful.1 The court
nonetheless granted the motion to suppress, reasoning that Detective Corvo
lacked reasonable suspicion—the term the statute uses is probable cause—
to believe that Lyles was armed and dangerous and therefore posed a “threat
to the safety of [Detective Corvo] or any other person.” See § 901.151(5),
Fla. Stat.2
The statute’s “probable cause” is not the probable cause required to
make an arrest. Rather, “when the term ‘probable cause’ is used in section
901.151, the term means reasonable belief or suspicion.” Cruse, 121 So. 3d
1
This assumption was based on the court’s factual determination that Lyles matched the BOLO and was in the vicinity of the crime. This factual determination is supported by competent substantial evidence in the record. “When reviewing a motion to suppress, we defer to the trial court's factual findings if they are supported by competent, substantial evidence, and review legal conclusions de novo.” Maragh v. State, 905 So. 2d 207, 207 (Fla. 3d DCA 2005).
2
Subsection (5) provides: Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized. (Emphasis added).
7
at 96. Any search based on “reasonable belief or suspicion” must be “strictly
limited to the extent necessary to reveal the weapon and protect the officers.”
Id. “During an investigatory stop, an officer may conduct a ‘stop and frisk’ or
pat-down of the suspect if the officer has a reasonable belief that the suspect
‘is armed with a dangerous weapon and therefore offers a threat to the safety
of the officer or any other person . . . .’” D.H. v. State, 121 So. 3d 76, 80 (Fla.
3d DCA 2013) (quoting § 901.151(5), Fla. Stat.); Cruse, 121 So. 3d at 99
(“[T]hree conditions are necessary to effectuate a lawful pat-down: (1) the
suspect's temporary detainment must be lawful; (2) the officer must have a
reasonable suspicion that the suspect is armed; and (3) the pat-down must
be strictly limited ‘only to the extent necessary to disclose, and for the
purpose of disclosing,’ the weapon.” (emphasis added) (quoting
§901.151(5)). The pat-down search must be based “specifically on the
reasonable belief that the suspect is armed and dangerous, and not simply
on the reasonable suspicion that justified the investigatory stop at the outset.”
D.H., 121 So. 3d at 80.
Here, the trial court found that Detective Corvo had reasonable
suspicion to stop Lyles because Lyles matched the fairly detailed BOLO
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description.3 Yet the court found that Detective Corvo lacked reasonable
suspicion that Lyles was armed and dangerous, resting that conclusion on
the following, each of which preceded the removal of the weapon:
• Corvo did not ask Lyles any questions;
• Corvo did not “relay any information about [Lyles] to dispatch;”
• Corvo did not “follow up with concurrent investigations in the area;”
• Corvo did not “engage with any other officers on scene to determine if
[Lyles] may or may not be involved in a crime;”
• “There [was] no observable bulge on or around [Lyle’s] waistband
based on the Body Worn Camera footage in evidence at the hearing
and shown to the Court;” and
• Corvo never testified about “concerns for officer safety or safety for the
public at large.”
These findings, however, are largely beside the point in determining
whether Detective Corvo had reasonable suspicion to search Lyles.
Reasonable suspicion that a suspect is armed with a dangerous weapon
“must be supported by some objective basis such as aggressive activity or
seeing a bulge prior to the pat-down.” D.H., 121 So. 3d at 80. Whether
3
Lyles contends that the BOLO in this case was vague, but we disagree. Compare Sanchez v. State, 199 So. 3d 472, 474-77 (Fla. 4th DCA 2016) (finding BOLO vague where it identified “two black males fleeing westbound from the store”); Jean v. State, 987 So. 2d 196, 198 (Fla. 4th DCA 2008) (finding BOLO insufficient because officer merely testified the suspect matched the BOLO without identifying “the source of the BOLO or the BOLO’s description of the suspects”) (emphasis added), with Coney v. State, 341 So. 2d 238 (Fla. 3d DCA 1976). In addition, the trial court specifically ruled that the BOLO was sufficient to create reasonable suspicion for the stop, i.e., it was not vague.
9
Detective Corvo questioned Lyles, radioed dispatch, or conferred with
officers nearer the scene has no bearing on that discrete question. As for the
bulge, the trial court appears to have credited Detective Corvo’s testimony
at the hearing that he saw one, even though the court could not discern a
bulge in the video. The video also corroborates his testimony that Lyles
moved his hand to the area of his waistband.
To the extent the trial court suppressed the firearm because the stop
and the search occurred simultaneously, that rationale finds no support in
the law. Applying the correct standard to this record, the totality of the
circumstances gave Detective Corvo a reasonable suspicion that Lyles was
armed with a dangerous weapon and therefore posed a threat to the safety
of the officers and others. Detective Corvo responded to a report of “shots
fired” near the Fontainebleau Hotel. On arriving, he received a fairly detailed
BOLO for the suspect—a black male in his thirties wearing a white hat, blue
shirt, and tan shorts. He immediately saw that Lyles matched that
description. And when he made eye contact with Lyles, he observed a bulge
and saw Lyles move his hand to that area to adjust it.4 Richardson v. State,
4
Detective Corvo did not need to specifically testify that there existed a risk to officer safety; his testimony that he observed a bulge and observed furtive movement suggesting Lyles had a firearm (in the face of a BOLO and shots fired call in the area) was sufficient.
10
599 So. 2d 703, 706 (Fla. 1st DCA 1992) (“[T]he officer's description of
appellant's conduct, together with the observation of the bulge, was enough
to permit the judge's approval of the limited pat-down which disclosed the
weapon.”); id. at 705 (“Examples of types of conduct which may constitute
articulable facts to support a reasonable suspicion that a suspect is armed
and dangerous include: (1) the suspect's failure to cooperate, (2) the
suspect's furtive movements, and (3) a bulge in the suspect's clothing.”);
Calhoun v. State, 308 So. 3d 1110, 1115 (Fla. 1st DCA 2020) (finding
stop/pat-down lawful where “the deputies saw unusual activity at an unusual
hour in a location known for ongoing problems with drugs and loitering” and
one of the deputies “saw a bulge” in the defendant’s pocket and the
defendant appeared nervous). See also State v. Hernandez, 658 So. 2d 620,
621 (Fla. 3d DCA 1995) (finding reasonable suspicion where officer saw the
defendant run behind a building in an area recently the target of burglaries,
noticed a bulge, and lifted the defendant’s shirt: “[A]n officer's conduct in
reaching the spot where a gun was thought to be hidden without first
conducting a pat down, was a limited intrusion designed to insure the officer's
safety and was, therefore, reasonable”).
We reverse the order granting the motion to suppress and remand for
further proceedings consistent with this opinion.
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Reversed and remanded.
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