Gun Possession Charge Thrown Out in Florida After Illegal Detention

In Florida, if police obtain evidence of a crime after an illegal detention, the criminal defense lawyer can get that evidence thrown out. In a recent case near Jacksonville, Florida, the police saw some people smoking cigarettes in a public park. Smoking was prohibited in the park so the police officers approached the group. The police learned the group came to the park in a vehicle, but none of them had licenses to drive. The police officers told them not to drive the car. The defendant went to the car to retrieve some property. The police officer then approached the defendant and asked him if he could pat him down, but the defendant refused. The police officer then detained the defendant who later admitted he had a gun in his pocket. The defendant was arrested for possession of a firearm by a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the gun arguing that the police had no legal basis to stop and detain the defendant. The police officer cannot stop and detain someone based on suspicion that the person is involved in criminal activity. The fact that the defendant went to the car to retrieve something is not specific evidence of criminal activity. The police officer may have assumed the defendant got something illegal out of the car, but a bare assumption is no basis to detain someone. While the defendant did ultimately admit that he had a gun, which was illegal since he was a convicted felon, that admission only came during an illegal detention. Since the illegal detention preceded the admission and prompted the admission, the admission does not rectify the illegal detention.

Of course, a police officer is always allowed to approach a person in a public place and ask questions and even ask to search that person. Likewise, that person is free to refuse. In this case, the difference was that the defendant initially refused the officer’s request to pat him down. The officer learned of the gun only after a detention that was not based on any evidence. Had the defendant initially agreed to a patdown and had officer found the gun initially, the possession of a firearm by a convicted felon charge probably would be been allowed to proceed. But since the defendant was smart enough to refuse the patdown, the police did not legally obtain the evidence of the handgun and the charge was ultimately thrown out.

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