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Carrying A Concealed Weapon Is Now More Difficult For The State To Prove

The First District Court of Appeal just made it more difficult for the State to prove you committed  the crime of carrying a concealed weapon.  In Stanley John Kilburn v. State of Florida, Mr. Kilburn was charged with carrying a concealed weapon. Kilburn filed a motion to suppress, contending he was illegally searched.   The trial court denied his motion. Kilburn then pleaded no contest to the charge while preserving his right to appeal the trial court’s denial of his motion to suppress.

At the hearing on Kilburn’s motion to suppress, Deputy Beach of the Escambia County Sheriff’s Office testified when was patrolling a hotel parking lot one morning, he noticed a pickup truck parked with the driver’s door open. He also noticed the truck had a cloudy license plate cover.

Deputy Beach parked and approached the truck to discuss the license plate cover with Kilburn and to give him a verbal warning about the license plate cover. Deputy Beach testified he “was just going to have a talk, it wasn’t — it really wasn’t even investigatory at that point.”

As Deputy Beach approached, Kilburn got out of the truck holding a knife. When Kilburn saw the deputy, he placed the knife on the front seat of the truck and raised his hands. As Kilburn raised his hands, Deputy Beach saw the butt of a handgun sticking out of Kilburn’s waistband. The deputy then detained Kilburn.

Deputy Beach then handcuffed Kilburn, placed him in the back of his patrol car, and read him his Miranda rights.  He then asked Kilburn whether he had a concealed-weapons license.  Kilburn replied he did not.  Kilburn was then arrested for carrying a concealed weapon without a license in violation of section 790.01, Florida Statutes (2017).

According to Deputy Beach, at the time of Kilburn’s initial seizure, “other than the firearm, [he] had no reason to detain him at that point.” Deputy Beach thereby made clear he had no other reason for seizing Kilburn other than the fact he was armed. The deputy did not articulate that any crime was afoot and stated he was not conducting an investigation. According to the deputy, his “sole intent was . . . to have a little conversation about the translucent tag and just have a conversation about that.”

At the suppression hearing, the trial court recognized the sole basis for Deputy Beach’s detention of Kilburn was the presence of the handgun. In choosing the governing law, the court looked to two cases that seem to be in conflict, Regalado v. State, 25 So. 3d 600 (Fla. 4th DCA 2010), and Mackey v. State (Mackey I), 83 So. 3d 942 (Fla. 3d DCA 2012).

In Regalado, a Fort Lauderdale police officer was approached by a citizen who reported “some guy was over there flashing his gun to a couple of friends.” Before the citizen could finish his report, Regalado passed nearby. The informant identified Regalado to the officer as the man who had the gun.

The officer then followed Regalado. As the officer got within six or eight feet of Regalado, he observed a bulge in Regalado’s waistband, which he believed to be a handgun. The officer then detained Regalado.  While performing a pat down search, the officer discovered the handgun.

At the suppression hearing, the officer admitted Regalado had not threatened the officer or anyone else. Furthermore, the informant did not report Regalado threatened anyone. The officer had not observed Regalado commit any crime.

The Fourth District Court of Appeal reasoned it was not illegal to possess a firearm in Florida if one has a concealed-weapons permit, a fact that cannot be determined by mere observation. The court ruled that unless the officer had a reasonable belief that some crime had been committed, was being committed, or was about to be committed, stopping someone solely based on possession of a firearm was a violation of the Fourth Amendment. Regalado, 25 So. 3d at 605–06.

In Mackey I, a Miami police officer was driving his patrol car when he saw Mackey standing  beside an apartment complex fence. As the officer drove slowly by Mackey, he saw a solid object inside Mackey’s pocket. As he got closer, the officer saw a “piece of the handle sticking out. Not much, but a piece enough for [him] to identify a firearm.”

The officer then got out of his car, approached Mackey, and asked whether Mackey had anything on him. Mackey replied that he did not.  The officer conducted a pat-down of Mackey and recovered the firearm he had previously seen. The officer asked Mackey if he had a concealed-weapons license, and Mackey replied in the negative. Mackey was then arrested for carrying a concealed firearm without a license.

In contrast to the Regalado court, the Third District Court of Appeal held that even without a reasonable suspicion that some crime had been or was about to be committed, an officer was entitled to stop someone based on mere possession of a firearm until the officer could confirm such firearm was legally carried. Mackey I, 83 So. 3d at 946–47. The court then certified express and direct conflict with Regalado.

At Kilburn’s suppression hearing, the trial court indicated it agreed with the reasoning in Mackey I. The trial court stated it was illegal to carry a concealed weapon in Florida with an exception for those who possess a concealed-weapons license. It viewed this exception as an affirmative defense. The trial court ultimately found the sole basis for the seizure and search of Kilburn was the possession of the handgun and explicitly found the search and seizure lawful.

The First District Court of Appeal found the trial court’s ruling contrary to law.  First, a stop-and-frisk requires both a reasonable suspicion that criminal activity is afoot and a reasonable suspicion that the subject might be armed. Without a reasonable suspicion of criminal activity, the officer cannot go further. And, bearing arms is not only legal; it also is a specifically enumerated right in both the federal and Florida constitutions. The court noted the citizens of Florida have spoken through their Legislature and have stated those who possess a license to carry a concealed weapon have the right to carry a concealed firearm.

Further, the court noted as of January 31, 2020 in Florida 2,074,782 residents were licensed to carry concealed weapons. This represents 13.11% of Floridians over twenty-one years old. Based on these numbers, approximately one out of every seven persons over the age of twenty-one may lawfully carry a concealed weapon in Florida. The court stated “the thought that these millions of people are subject to seizure by law enforcement until their licenses are verified is antithetical to our Fourth Amendment jurisprudence.” Then, by way of analogy, the court further noted “[n]o court would allow law enforcement to stop any motorist in order to check for a valid driver’s license.”

The First District then adopted the holding and rationale of Regalado and recognize conflict with  Mackey I. Because the ruling on the motion to suppress which permitted the firearm found on Kilburn to be admitted into evidence was dispositive, the court reversed his conviction and sentence.

If you’ve been arrested for carrying a concealed weapon, you may have strong defenses to your charges.  If you’d like to discuss your case with a Jacksonville criminal defense attorney who practices in Duval, Clay, Nassau, and St. Johns Counties, call me for a free consultation to discuss the best strategies for defending your case.

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