Firearm Possession and Unlawful Police Detention

Does possession of a concealed firearm (if observed) give police justification to stop or detain a suspect?

Police Detentions and Concealed Firearms

Just after midnight in the downtown district of Springfield, Chief Clarence “Clancy” Wiggum was approached by a concerned citizen who identified himself as Ned Flanders. Ned told Chief Wiggum that he was at Barney’s Bowl-A-Rama across the street, a few minutes prior, when he saw Sideshow Bob—a character he recognized from his favorite television show, The Crusty Clown Show. Ned claimed that he witnessed Sideshow Bob flashing a firearm while conversing with friends at one of the bowling lanes. Specifically, Ned claimed that Sideshow Bob lifted his shirt briefly and exposed a silver handgun tucked in his waistband. Ned described Sideshow Bob as tall and slender, with bright yellow skin, blue pants, a green shirt, and “long hair that sprouted out like a palm tree.”

About thirty minutes after receiving the tip, Chief Wiggum spotted a tall slender man, with bright yellow skin, blue pants, a green shirt, and long hair that sprouted out like a palm tree, exiting Barney’s Bowl-A-Rama. Chief Wiggum gave pursuit on foot, keeping a cautious distance. During the brief pursuit, he spotted the butt of a sliver handgun tucked in Sideshow Bob’s waistband. Wiggum then drew his weapon and ordered Sideshow Bob to the ground.

After being detained, an emotional Sideshow Bob was given his Miranda Rights, and then questioned about the firearm. Sideshow Bob ranted incessantly about his frustration with his current employer—Krusty the Clown—whom he claimed undervalued his skills and his prestigious Yale education and humiliated him daily by shooting him from a cannon and hitting him in the face with pies. Upon further questioning, Sideshow Bob eventually admitted to not having a “concealed carry” permit for the firearm. Chief Wiggum determined that Sideshow Bob was not a convicted felon, and that he had purchased the gun legally from a local gun dealer. Nevertheless, Sideshow Bob was placed under arrest and charged with carrying a concealed firearm—a third-degree felony in Florida.

In the above scenario, were the police justified in stopping and detaining Sideshow Bob, simply because they observed a concealed firearm within his possession? Consider this legal issue in a broader context: If the police observe a suspect to be in possession of a concealed firearm, does this observation (by itself) give police justification to stop or detain the suspect? According to Florida courts, the answer is no.

Possession of a gun is not illegal in Florida. Even if the gun is concealed, it is not illegal if the carrier has obtained a concealed weapons permit. In accordance with this proposition, Florida courts have unanimously held that possession of a gun—even concealed possession—without more, cannot provide justification for police officers to stop or detain a suspect.

Possession of a gun is not illegal in Florida. Even if the gun is concealed, it is not illegal if the carrier has obtained a concealed weapons permit.

Investigatory Stops Generally

The Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution both guarantee the right to be free from unreasonable searches and seizures. Florida recognizes three levels of police citizen encounters: 1) a consensual encounter involving minimal contact during which the citizen is free to leave; 2) an investigatory stop which requires a well-founded suspicion of criminal activity; and 3) an arrest supported by probable cause that a crime has been committed or is being committed. Popple v. State, 626 So.2d 185, 186 (Fla.1993).

To justify an investigatory stop—without violating a citizen’s Fourth Amendment Rights—police must possess specific, articulable facts that would warrant a man of reasonable caution in the belief that a person has committed, is committing, or is about to commit a crime. Id. A bare suspicion or mere hunch is insufficient. Id. at 186. In determining whether sufficient evidence to support a well-founded suspicion exists, a court should consider all facts known by police at the time of the stop. Bartlett v. State, 508 So.2d 567, 568 (Fla. 2d DCA 1987). Factors such as time, location, suspect’s physical appearance, suspect’s behavior, or anything unusual that suggests criminal activity must be considered. Id.

Regalado v. State of Florida

In 2009, the Fourth District Court of Appeals addressed this issue in Regalado v. State, 25 So.3d 600 (Fla. 4th DCA 2009). In Regalado, a police officer was approached by an anonymous man who claimed to have seen Regalado at a restaurant nearby with friends raising his shirt and exposing a gun tucked in his waistband. The man gave a description of Regalado and even pointed him out for the officer, who then gave pursuit on foot. During the brief pursuit, the officer spotted a bulge in Regalado’s waistband, which he believed to be the butt of a pistol. Fearing he might lose sight of Regalado in a crowd of people, the officer drew his pistol and ordered Regalado to the ground. The court found justification for the stop lacking.

In other words, the only information received by the officer was that the individual had a gun. Possession of a gun is not illegal in Florida. Even if it is concealed, it is not illegal if the carrier has obtained a concealed weapons permit. Although the officer observed a bulge in Regalado’s waistband, which in his experience looked like a gun, no facts and circumstances were presented to show that Regalado’s carrying of a concealed weapon was without a permit and thus illegal.

Regalado v. State, 25 So.3d 600, 604 (Fla. 4th DCA 2009).

The court noted the Florida Supreme Court’s rejection of arguments calling for a firearms exception to the requirements of a Terry stop. “Based upon our understanding of both Florida and United States Supreme Court precedent, stopping a person solely on the ground that the individual possesses a gun violates the Fourth Amendment.” Id. at 606.

Firearm Possession And Unlawful Police Detention

Mackey 1 and Mackey 2

In 2012, the Third District Court of Appeals issued an opinion in Mackey v. State, (Mackey 1) 83 So. 3d 942 (Fla. 3d DCA 2012), that conflicted with the holding in Regalado. In Mackey 1, the court held that even without reasonable suspicion of criminal activity, an officer was justified in stopping someone based on mere possession of a firearm—until the officer could confirm the firearm was legally carried. The court then certified express and direct conflict with Regalado.

On review, the Florida Supreme Court affirmed the ruling but disagreed with the third district’s reasoning. Mackey v. State, (Mackey 2) 124 So. 3d 176 (Fla. 2013). Rather than basing its decision on the defendant carrying a concealed firearm, the Supreme Court (in Mackey 2) instead considered the totality of the circumstances, specifically that Mackey was in a high crime area and that he openly lied to the officer during the initial consensual encounter, providing, under the totality of the circumstances, the officer with a reasonable suspicion that criminal activity was occurring. Thus, the Supreme Court in Mackey 2 supports the proposition that, consistent with Regalado and Slydell, something more than suspicion of a concealed firearm is required to validate a Terry stop.” Burnett v. State, 246 So.3d 516 (Fla. 5th DCA 2018).

To justify an investigatory stop, police must possess specific, articulable facts that would warrant a man of reasonable caution in the belief that a person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So.2d 185, 186 (Fla.1993).

Slydell v. State of Florida

More recently, in 2018, the Second District Court of Appeals similarly addressed this issue and supported the ruling in Regalado. In Slydell v. State, 240 So.3d 134 (Fla. 2nd DCA 2018), a confidential informant reported seeing Slydell inside a club with several guns concealed in his gym short. The informant gave a detailed description of Slydell and the guns, which was communicated to police officers in the vicinity. When Slydell left the club, he was spotted walking by two patrol officers, who noticed a heavy object weighing down his shorts. The officers ordered Slydell to the ground at gunpoint and confiscated three guns from him.

The court applied the analysis in Regalado, noting “as in Regalado, the only activity the informant reported to the detective was that Slydell was in possession of firearms.” Id. at 136. The court found that the detailed information provided by the informant, even combined with the officer’s observations of the bulge in Slydell’s shorts, did not establish any criminal activity.

No matter how reliable the confidential informant or how detailed the description of Slydell and the guns, the tip did not allege any criminal activity, and in particular it did not reveal Slydell’s status as a felon nor did it say whether he had a concealed weapons permit.” Id. “Upon encountering Slydell, the officers saw a bulge in Slydell’s shorts pocket and presumed it was a gun based on the information given to them, but they did not observe any conduct that would constitute a crime or impending crime, they did not know he was a felon, and they did not ask Slydell any questions before ordering him to the ground. Whether Slydell had a concealed weapons permit, was “a fact that an officer cannot glean by mere observation.

Slydell, 240 So.3d at 136.
Final Thoughts

No court in Florida would allow law enforcement to stop motorists to then check for a valid license. Similarly, Florida courts have unanimously held that law enforcement may not detain a suspect with a gun simply to determine if the carrier has a valid permit. Possession of a gun is not illegal in Florida. And possession of a concealed firearm is not illegal if the carrier has obtained a concealed weapons permit. Thus, the observation that someone possesses a firearm—even if concealed—provides no basis for justifying a stop or detention. These were the principles set forth above in Regalado, Skydell, and the Florida Supreme Court in Mackey 2.

In our example above, Chief Wiggum made the decision to detain Sideshow Bob based solely on his knowledge that Sideshow Bob possessed a concealed firearm. Chief Wiggum had no other information to act upon. He did not know if Sideshow Bob was a convicted felon, or whether he possessed a valid permit to carry a concealed firearm. Since Chief Wiggum did not observe any criminal activity, the stop and detention of Sideshow Bob was an illegal detention, and a violation of his right to be free from unreasonable searches and seizures, under the Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution. Under these circumstances, a court would be inclined to grant a defendant’s motion to suppress, and all evidence gathered as a result of the unlawful search and seizure would be deemed inadmissible at trial.

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William Wynne

Attorney William B. Wynne practices criminal defense in the Tampa Bay area and surrounding counties. Contact us for a free consultation.

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