Florida First District Court of Appeals: Concealed Gun not Valid Reason for Stop

U.S.A. –-(AmmoLand.com)- The First District Court of Appeal, State of  Florida, on 29 May, 2020, found merely noticing a person had a concealed handgun was not sufficient reason to stop and search them. It was not sufficient probable cause to investigate the situation further under Florida law.

Here is a summation of what happened, according to the First District Court of Appeal. From 1dca.org:

Deputy Beach parked and approached the truck in order to discuss the license plate cover with the driver and to give him a verbal warning about the license plate cover. According to Deputy Beach, he “was just going to have a talk, it wasn’t — it really wasn’t even investigatory at that point.” As Deputy Beach was approaching, the appellant got out of the truck holding a knife. When the appellant saw the deputy, he placed the knife on the front seat of the truck and raised his hands. When he raised his hands, Deputy Beach saw the butt of a handgun sticking out of the appellant’s waistband. The deputy then “closed the distance and put [his] hands on him and kind of guided him up against the vehicle and began to detain him.” After the appellant was handcuffed, placed in the back of the deputy’s patrol car, and read the Miranda1 warning, the deputy asked the appellant if he had a concealed-weapons license, and the appellant responded in the negative. The appellant 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 the appellant’s initial seizure, “other than the firearm, [he] had no reason to detain him at that point.”

The only probable cause given for the detention and search was the presence of the concealed firearm.  Over 40 years ago, I had been taught, as a newly minted officer, that searching someone I suspected had a weapon, was always acceptable. I was told no judge would refuse to prosecute a case where a weapon was found. The weapon itself would be proof the search was warranted.

That was several decades ago. Concealed carry was illegal in Wisconsin. Permits were only available in a few states, and difficult to obtain.

The nation has come a long way toward restoring Second Amendment rights. The First  District Court of Appeal in Florida referenced the Pennsylvania Supreme Court in Commonwealth v. Hicks decision from 31 May, 2019. In Hicks, the Pennsylvania Supreme Court said the mere presence of a concealed weapon was not probable cause for a stop and search.  There have been similar decisions in Kentucky and Washington state.

Hicks was/is black. The courts should be colorblind, for equality under the law. For decades, minorities were discriminated against when it came to carrying weapons.

In the infamous Dred Scott case, Chief Justice Taney wrote that black people could not be considered citizens, because, they would be allowed to keep and carry weapons wherever they went. Taney considered such a situation to be unthinkable. Now, it is unthinkable that a black man be refused a concealed carry permit, because of their skin color, in all but the eight states where police are allowed to discriminate as a matter of law.

In 1941, a judge in Florida wrote, in a decision, that the ban on concealed carry was “NEVER INTENDED TO BE APPLIED TO THE WHITE POPULATION“.

The states which currently allow legal discrimination are: Hawaii, California, New York, Maryland, Delaware, New Jersey, Massachusetts, and Rhode Island.  The Crime Prevention Research Center paper on Concealed Carry in 2018, indicated Hispanics, women, and blacks, were underrepresented in concealed carry permits in Los Angeles County.

Discrimination is difficult to detect in Hawaii and New Jersey, as the number of permits issued are so small as to be statistically insignificant.

No analysis of permits by race or sex was found for New York, Maryland, Delaware, Massachusetts, or Rhode Island.

In the 42 other states and Massachusetts, a significant percentage of the adult population has a carry permit or does not require a permit to carry a firearm.

Massachusetts is one of the few states where a permit is required to merely own a firearm. Most of Massachusetts’ permits allow for concealed carry.

The Florida First Court of Appeal followed the Pennsylvania Supreme Court in its logic. So many people are now sanctioned by state law to carry concealed, the mere presence of a firearm is not sufficient to establish reasonable suspicion for a police officer to detain someone, search them or ask to see a permit.

The decision follows precedent from the law on motor vehicle operation. A person may not be stopped, simply to see if they have a valid license.

The court gives this analysis:

In Florida, 2,074,782 residents were licensed to carry concealed weapons as of January 31, 2020.4This represents 13.11% of Floridians over twenty-one years old. This number does not include those that do not need a license, such as law enforcement officers, and those who may carry under a different license, such as private investigators and security guards. 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 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. See Adams v. Williams, 407 U.S. 143, 146 (1972) (the purpose of a Terry stop is not to discover evidence, but to allow an officer to conduct his investigation without fear of violence). No court would allow law enforcement to stop any motorist in order to check for a valid driver’s license.

The decision, while not binding in other states, bolsters argument and establishes a trend in treating carry of firearms as a normal, legal, activity. In Texas, for example, there has been a considerable argument that a person openly carrying does not establish probable cause for a law enforcement person to ask for a permit.  The Florida Court decision bolsters the argument.

Florida is one of only five states where open carry is banned in most public places.  It is unusual enough the dissenting judge, in this case, felt compelled to remark: “Open carrying of weapons is still a crime in Florida.” 

The dissenting Judge, J. Osterhause, believed the mere sight of the firearm was sufficient basis for an arrest on an open carrying charge, in spite of the wording of the law.

The case for legal open carry in Florida will be bolstered by this decision. The political powers in Florida have used every political trick to defeat open carry while scheduling votes they can use to claim they support it.

It is unlikely they will be able to continue to resist the political tide for restoring Second Amendment rights for all Americans, no matter what color or sex.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

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