An appellate court in Florida recently decided that a police officer who sees a firearm when approaching a citizen is not permitted to rely exclusively on the possession of the firearm as the justification for an investigatory stop and search. Bearing arms is not only a lawful activity, it is “a specifically enumerated right” protected under both the state and federal constitutions. Taking into consideration the sheer number of persons in the state who are permitted to carry concealed weapons, this “potentially lawful activity cannot be the sole basis for a detention. If this were allowed, the Fourth Amendment would be eviscerated.”

The background of the ruling was a stop and arrest made by Deputy Beach of the Escambia County, Florida Sheriff’s Office. He testified that while he was at a motel parking lot at 8:30 in the morning, he noticed a truck with a translucent cover over the license plate. A man was sitting in the driver’s seat and the officer approached him to “discuss” the license plate cover. The man – Stanley Kilburn – got out of the truck holding a knife, but when he saw the officer he placed the knife inside the truck and raised his hands. Once Kilburn raised his hands, Deputy Beach was able to see the butt of a handgun sticking out of his waistband, and immediately detained and searched him. Deputy Beach did not testify as to how long the gun was visible other than to say that it “was concealed, but not really concealed.”

It was not until after Kilburn was handcuffed, secured in the police vehicle and given a Miranda warning that Deputy Beach questioned Kilburn and asked whether he had a concealed-weapons license. He did not, and was charged with unlicensed carrying of a concealed weapon.

While open carry is generally not permitted in Florida, a person licensed to carry concealed and carrying a firearm in a concealed manner may “briefly and openly display the firearm to the ordinary sight of another.”

Under long-standing United States Supreme Court precedent, Terry v. Ohio, “both a reasonable suspicion that criminal activity is afoot and a reasonable suspicion that the subject might be armed” is required before a law enforcement officer may perform a “stop-and-frisk” search. Kilburn sought to suppress the evidence of the gun, claiming the officer had insufficient cause to detain him and that the officer’s actions were accordingly illegal.

Deputy Beach specifically testified at the trial court hearing that he did not have reasonable suspicion of any criminal activity by Kilburn (past, present or impending); the sole cause of the detention and arrest was the partially visible firearm.

The trial court looked to two previous but inconsistent cases for guidance. In the first, Regalado v. State (Fla. Dist. Ct. App. 2010), the court held that the police could not detain a person solely on the ground that he possessed a gun. In the later case, Mackey v. State (Mackey I) (Fla. Dist. Ct. App. 2012), the court ruled that, even without reasonable suspicion, an officer could stop someone based on mere possession of a gun until the officer could confirm the gun was legally carried.

The trial court in this case opted to follow the Mackey decision – that even without a reasonable suspicion that a crime had been or was about to be committed, an officer should not be prohibited from detaining anyone seen with a firearm. The appellate brief filed by Kilburn noted that one of the findings the trial court made in support of its decision “was that most people who carry a concealed firearm probably do not have a permit.” However, there was “no competent substantial evidence to support this finding, and in fact, between 1999 and 2016 the number of permit holders has increased over 400 percent…”

On appeal, a divided panel of the District Court of Appeal of Florida reversed, finding that the trial court ruling was “contrary to law.”

Simply possessing a firearm in public was insufficient to create the necessary reasonable suspicion for an investigatory stop by police, because it was legal to carry a firearm in Florida with a concealed-weapons license and the person’s status as a licensee could not be determined by mere observation. The deputy confirmed “that he had no other reason for seizing the appellant other than the fact that he was armed,” and did not ask about a license until after Kilburn has been arrested and taken into custody. There was no evidence that Kilburn’s gun was intentionally displayed in an angry or threatening manner.

The appellate court also relied on a change in the law on the “unlicensed carrying” crime that occurred after the Regalado and Mackey decisions. The amendment clarified that the prohibition did not apply to anyone lawfully carrying a concealed firearm, either pursuant to a license or while evacuating an area during a mandatory state of emergency order. This “statutory change made it even more clear that a law enforcement officer may not use the presence of a concealed weapon as the sole basis for seizing an individual.”

A critical factor in the court’s decision, though, was the huge number of persons licensed to carry concealed firearms in the state. Unlike the trial court’s speculations, the appellate court determined that as of January 2020, over two million residents were licensed to carry concealed weapons, representing over 13% of Floridians over 21 years old. Even so, this number did not include those entitled to carry without a license, such as law enforcement officers, and those carrying under a different license (private investigators and security guards). As emphasized by the court, these numbers meant that “approximately one out of every seven persons over the age of twenty-one may lawfully carry a concealed weapon in Florida. 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…No court would allow law enforcement to stop any motorist in order to check for a valid driver’s license.”

The appellate court granted Kilburn’s motion to suppress and reversed his conviction. (One dissenting judge would have allowed the evidence and let the conviction stand.)

The decision is Kilburn v. State, No. 1D18-4899, 2020 WL 2781864 (Fla. Dist. Ct. App. May 29, 2020), available here.

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