Posted On: April 13, 2012 by Shorstein, Lasnetski & Gihon

Can a Police Officer in Florida Search You if He Sees Part of a Concealed Handgun?

In Florida, possession of a firearm is not illegal unless the person is a convicted felon. Possession of a concealed firearm is illegal unless the person has a concealed firearm permit. If a police officer sees a person in possession of what appears to be a handgun and does not have evidence that the person is a convicted felon and does not know if the person has a concealed firearms permit, does that police officer have probable cause to search the person? The Florida courts have disagreed on this issue, but the answer in Jacksonville appears to be yes.

In Florida, a police officer cannot search a person without probable cause to believe the person is involved in criminal activity or consent. Since merely possessing a gun, without more evidence, is not necessarily evidence of a crime, how can a police officer search a person if all the police officer knows is the person may be in possession of a firearm?

In a recent carrying a concealed weapon case near Jacksonville, Florida, the police were on patrol and saw the defendant with what appeared to be part of the handle to a handgun sticking out of his pants. When they approached the defendant, they could not see the handle but saw a bulge in his pants consistent with a handgun. The police officer asked to search the defendant, but he refused. The police officer then searched him anyway and found a handgun. At the time of the search, the police officer did not know if the defendant was a convicted felon, did not know if he had a concealed weapons permit and did not see the defendant commit any other crimes. After obtaining the concealed handgun, the police learned that defendant was a convicted felon and did not have a concealed weapons permit. The defendant was arrested for carrying a concealed weapon and possession of a firearm by a convicted felon.

The criminal defense attorney filed a motion to suppress the evidence of the gun. The criminal defense lawyer argued since the police officer did not know that the defendant was a convicted felon and did not know if he had a concealed weapons permit prior to the search, the police officer did not have probable cause to believe the defendant was committing any crime. Mere possession of a gun is not a crime, and possessing a concealed handgun is not a crime if the defendant has a concealed firearms permit for it.

The court disagreed. Possession of a gun is not a crime without evidence that the defendant is a convicted felon, however the way the carrying a concealed firearm law is written, carrying a concealed handgun is a crime. Having a permit for it is a defense that the defendant must raise. Since the police officer saw the defendant with the concealed firearm, that was sufficient evidence that he was committing a crime and sufficient for a search based on probable cause.