Illegal possession of a gun in Florida is a serious crime that carries significant consequences, particularly if you’ve already been convicted of a felony. In Mackey v. State, the Third District Court of Appeal explains the legal basis on which a police officer can stop a person on the street and pat him down for weapons.
Anthony Mackey was convicted on two gun possession charges: carrying a concealed firearm and possession of a firearm by a convicted felon. He was arrested in Miami, after a police officer noticed who was driving in a marked patrol car noticed him standing next to a fence outside of an apartment complex. The officer noticed an object protruding from Mackey’s side pocket. As he drove closer, the officer testified that he observed a “piece of the handle sticking out. Not much, but a piece enough for me to identify a firearm.”
The officer got out of his car, approached Mackey and asked him if he was carrying a weapon. Mackey said “no.” The officer then patted Mackey down – it’s unclear whether Mackey consented to the pat down – and felt the fire arm in Mackey’s pocket. The officer removed the gun, and after Mackey confirmed that he did not have a permit for it, arrested Mackey for possession of a concealed firearm. The second charge was later added when prosecutors found out that Mackey had previously been convicted of a felony.
The trial court rejected Mackey’s motion to suppress the firearm, in which he argued that the officer did not have the requisite reasonable suspicion to stop him on the street and pat him down. Mackey then plead guilty to both charges and filed an appeal on the suppression ruling.
On appeal, the court explained that “Florida generally recognizes three categories of police-citizen encounters.” A “consensual encounter” is one in which a citizen is free at any time to walk away. An “investigatory stop,” on the other hand, “requires a reasonable suspicion that an individual has committed, is committing, or is about to commit a crime,” according to the ourt. Finally, an officer must have probable cause that the person committed, is committing, or is about to commit a crime in order to make an arrest.
In this case, the court found that when the officer approached Mackey and asked him if the officer could pat him down, this was a consensual encounter. It became an investigatory stop, however, when the officer conducted the pat down. Furthermore, the pat down search itself required probable cause that he was carrying a concealed weapon.
The court rejected Mackey’s argument that the officer could not have had probable cause because it is not necessarily illegal to carry a gun in Florida (if you have a permit). “It is the concealment of the firearm, not merely its possession, which rendered Mackey’s conduct illegal, and authorized the officer’s actions in this case,” the court ruled. Based on training and experience, the court found, the officer had probable cause to believe that Mackey was concealing a gun.
As a result, the court affirmed the trial court’s decision.
The sentence for unlawful possession of a firearm depends on the circumstances; the penalty ranges from fines to imprisonment. For example, a felon who is convicted of unlawfully possessing a firearm must serve a minimum of 3 years in prison. The South Florida criminal defense attorneys at Anidjar & Levine are experienced in handling weapons-related cases. Contact our lawyers to schedule a confidential consultation and discuss how Anidjar & Levine can aggressively defend your rights in court.
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