Florida Search and Seizure: Mere Possession of a Weapon is Not Grounds to Search
Unreasonable searches and seizures are unconstitutional. If a police officer violates this prohibition against unlawful searches and seizures, any evidence that was found due to such violation can be suppressed. Therefore, the evidence cannot be introduced at trial.
In Florida, there are three types of police encounters:
- a consensual encounter in which a person is free to leave at any time;
- a investigatory stop (Terry Stop) in which the person is not free to leave, but the police officer may only pat the subject down and the officer must have a well-founded suspicion of criminal activity; and
- an arrest that is supported by probable cause to believe that a crime has occurred (or is being committed).
Recently, the Florida Fourth District Court of Appeals addressed this issue. In Regalado v. State, an anonymous tipster informed police that Mr. Regalado was in possession of a firearm. An officer stopped Mr. Regalado and patted him down. As a result, he founded a gun on Mr. Regalado. Mr. Regalado filed a Motion to Suppress the weapon due to an unlawful search and seizure. The trial denied Mr. Regalado's motion. The Florida appellate court reversed this decision and granted his motion. The court ruled that:
"the only information received by the officer was that the individual had a gun. Possession of a gun is not illegal in Florida. Even if it is concealed, it is not illegal if the carrier has obtained a concealed weapons permit. Although the officer observed a bulge in Regalado's waistband, which in his experience looked like a gun, no facts and circumstances were presented to show that Regalado's carrying a concealed weapon was without a permit and thus illegal."
Since the officer did not have a well-founded suspicion that the Defendant was involved in criminal activity, he did not have grounds to conduct an involuntary search and seizure. When a police officer violates the Fourth Amendment of the United States Constitution, as applied to the States via the Fourteenth Amendment, it is important to suppress the evidence obtained as a result of the search or seizure. If you believe that you have been subjected to such, you should contact a Jacksonville Criminal Attorney to discuss your rights. A Jacksonville Criminal Attorney that has experience suppressing evidence recovered due to unlawful searches and seizures can investigate whether your rights were violated.
