You’re walking down the street – or hanging out in a park – minding your own business and police officers approach. Can they stop or detain you? It depends, as Florida’s Second District Court of Appeals explains in Musallam v. Florida.
Mr. Musallam and some of his friends encountered local police officers after they were noticed smoking cigarettes in a public park. A park employee called police to report the illegal behavior and an officer later arrived at the scene and spoke with the men. Each of them, including Musallam, consented to be searched by the officer. The officer learned during the conversation that, although the men arrived at the park in a car, none of them had a valid driver’s license. The officer instructed the men to leave the park on foot.
Shortly after the men left, the park employee observed Musallam return to the car and retrieve something from the passenger-side door pocket. The worker alerted the police officer, who stopped Musallam and noticed a bulge in his pocket that hadn’t previously been there. When Musallam refused to consent to another search, the officer detained him and called for back up. Other officers arrived and Musallam advised that he had a gun in his pocket as they approached. The police officers retrieved the weapon.
Musallam was later charged with possession of a firearm and possession of a concealed weapon. At trial, he attempted to suppress the evidence related to the gun, arguing that the police officer wrongly detained him at the park and that the gun was the fruit of that illegal detention. A trial court denied the motion and Musallam later plead “no contest” to the charges.
Reversing the decision on appeal, the Second District agreed with Musallam that he was unlawfully detained. “An officer may effect a temporary investigative detention if the circumstances reasonably indicate that the person detained has committed, is committing, or is about to commit a crime,” the Court explained, citing Section 901.151, Florida Statutes (2012). It added, however, that the detention can’t be based on “inarticulate hunch” and must instead reflect a “well-founded, articulable suspicion of criminal activity.”
Here, the Court said the police officer had no more than a hunch that something might be up when he stopped Musallam the second time. Specifically, the Court said it wasn’t inherently suspicious that Musallam returned to the car to retrieve his personal belongings after the officer told him and his friends that they couldn’t drive the vehicle. Nor was the fact that the park was in a high crime area and that Musallam acted “evasively,” according to the officer, enough to justify detaining him. As a result, the Court reversed the convictions and ordered that Musallam be released.
Detainments like this one are common in Florida gun, drug and other criminal cases. If you’re facing a gun possession or other charge in Florida, it is vital that you seek the advice of a knowledgeable criminal defense attorney who can aggressively defend your rights and interests. The South Florida criminal defense attorneys at Anidjar & Levine have decades of experience handling gun possession cases and will work tirelessly to get your charges dismissed or reduced.
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