Kilburn v. State, No. 1D18-4899

• Citation: 297 So.3d 671
• Decision Date: 29 May 2020
• Docket Number: No. 1D18-4899
• Parties: Stanley John KILBURN, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

297 So.3d 671

Stanley John KILBURN, Appellant,

v.STATE of Florida, Appellee.

No. 1D18-4899

District Court of Appeal of Florida, First District.

May 29, 2020

Rehearing Denied July 7, 2020

Andy Thomas, Public Defender, Lori A. Willner, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.

Roberts, J.

The appellant was charged with carrying a concealed weapon. Shortly after his arrest, the appellant filed a motion to suppress arguing that the officer illegally searched him. The trial court denied his motion. After receiving the trial court's order, the appellant pleaded no contest to the charge and preserved his right to appeal the trial court's denial of his motion to suppress.

At the hearing on the appellant's motion to suppress, Deputy Beach of the Escambia County Sheriff's Office testified that while he was patrolling the back parking lot of the Key West Motel at 8:30 in the morning, he noticed a Dodge Ram pickup truck parked with the driver's door open. He also noticed that the truck had a translucent license plate cover and that it appeared the truck had an out-of-state plate, but he could not tell for sure. The appellant was in the driver's seat.

Deputy Beach parked and approached the truck in order to discuss the license plate cover with the driver and to give him a verbal warning about the license plate cover. According to Deputy Beach, he "was just going to have a talk, it wasn't -- it really wasn't even investigatory at that point." As Deputy Beach was approaching, the appellant got out of the truck holding a knife. When the appellant saw the deputy, he placed the knife on the front seat of the truck and raised his hands. When he raised his hands, Deputy Beach saw the butt of a handgun sticking out of the appellant's waistband. The deputy then "closed the distance and put [his] hands on him and kind of guided him up against the vehicle and began to detain him." After the appellant was handcuffed, placed in the back of the deputy's patrol car, and read the Miranda¹ warning, the deputy asked the appellant if he had a concealed-weapons license, and the appellant responded in the negative. The appellant was then arrested for carrying a concealed weapon without a license in violation of section 790.01, Florida Statutes (2017). According to Deputy Beach, at the time of the appellant's initial seizure, "other than the firearm, [he] had no reason to detain him at that point."

The Fourth Amendment to the United States Constitution and Article I, section 12 of the Florida Constitution guarantee the right to be free from unreasonable searches and seizures. The Florida Constitution expressly provides that this right is to be construed in conformity with the Fourth Amendment as construed by the United States Supreme Court. In Terry v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held as follows:

[W]here a police officer observes unusual conduct which causes him to reasonably conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous ... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which might be used to assault him.

In this case, Deputy Beach clearly stated that he had no other reason for seizing the appellant other than the fact that he was armed. The deputy did not articulate that any crime was afoot and stated he was not conducting an investigation. According to the deputy, his "sole intent was ... to have a little conversation about the translucent tag and just have a conversation about that."

At the suppression hearing, the trial court recognized that the sole basis for detention in this case was the presence of the handgun. The court looked to two cases that seem to present a conflict, Regalado v. State , 25 So. 3d 600 (Fla. 4th DCA 2010), and Mackey v. State (Mackey I ), 83 So. 3d 942 (Fla. 3d DCA 2012).

In Regalado , a Fort Lauderdale police officer was approached by a citizen who reported "some guy was over there flashing his gun to a couple of friends." The officer was in the process of getting a description of the man when Regalado walked by. The informant identified Regalado to the officer as the man who had the gun. The officer began to follow Regalado. As the officer got within six or eight feet of Regalado, he observed a bulge in Regalado's waistband, which, from his training, he believed to be a handgun. The officer, concerned that Regalado was going to get lost in the crowd, drew his revolver and ordered Regalado to the ground. The officer then patted Regalado down and retrieved the handgun. At the suppression hearing, the officer admitted that Regalado had not threatened the officer nor had Regalado threatened anyone else. Furthermore, the informant did not report that Regalado threatened anyone. The officer had not observed any crime take place.

The Fourth District Court of Appeal reasoned that it was not illegal to possess a firearm in Florida if one has a concealed-weapons permit, a fact that cannot be determined by mere observation. The court ruled that unless the officer had a reasonable belief that some crime had been committed, was being committed, or was about to be committed, stopping someone solely based on possession of a firearm was a violation of the Fourth Amendment. Regalado , 25 So. 3d at 605–06.

In Mackey I , a Miami police officer was driving his patrol car when he saw Mackey standing on one side of a fence by an apartment complex. The officer slowed down. As he drove slowly by Mackey, he saw a solid object inside Mackey's pocket. As he drew closer, the officer saw a "piece of the handle sticking out. Not much, but a piece enough for [him] to identify a firearm." The officer got out of his car, approached Mackey, and asked whether Mackey had anything on him. Mackey replied "no." The officer conducted a pat-down of Mackey and recovered the firearm he had previously seen. The officer asked Mackey if he had a concealed-weapons license, and Mackey replied in the negative. The officer then arrested Mackey for carrying a concealed firearm without a license.

The Third District Court of Appeal held that even without a reasonable suspicion that some crime had been or was about to be committed, an officer was entitled to stop someone based on mere possession of a firearm until the officer could confirm such firearm was legally carried. Mackey I , 83 So. 3d at 946–47. The court then certified express and direct conflict with Regalado .

The Florida Supreme Court took up Mackey I based on express and direct conflict with Regalado . Mackey v. State (Mackey II) , 124 So. 3d 176 (Fla. 2013). However, in the end, the supreme court did not resolve the conflict. It relied on the trial court's findings that Mackey was in a high crime area and that he openly lied to the officer during the consensual encounter, providing, under the totality of the circumstances, the officer with a reasonable suspicion that criminal activity was occurring.

In this case, it is a possibility that Deputy Beach could have articulated reasonable suspicion for a Terry stop. But he clearly did not. On the contrary, he expressly stated that the only reason for the seizure and search of the appellant was the presence of the handgun. At the suppression hearing, the trial court stated that it agreed with the reasoning contained in Mackey I . The trial court stated that it was illegal to carry a concealed weapon in Florida with an exception for those who possess a concealed-weapons license. It viewed this exception as an affirmative defense. The trial court ultimately found that the sole basis for the seizure and search of the appellant was the possession of the handgun and explicitly found the search and seizure lawful.

The trial court's ruling is contrary to law for two reasons. First, Terry clearly requires both a reasonable suspicion that criminal activity is afoot and a reasonable suspicion that the subject might be armed in order to do a stop-and-frisk. Without a reasonable suspicion of criminal activity, the officer cannot go further. Bearing arms is not only legal; it also is a specifically enumerated right in both the federal and Florida constitutions. See Norman v. State , 159 So. 3d 205, 212 (Fla. 4th DCA 2015) (holding that based on the Second Amendment, "it is clear that a total ban on the public carrying of ready-to-use handguns outside the home cannot survive a constitutional challenge under any level of scrutiny"), approved , 215 So. 3d 18 (Fla. 2017). The citizens of Florida have spoken through their Legislature and have stated that those who possess a license to carry a concealed weapon have the right to carry a concealed firearm.

Other courts have also taken the position that legally carrying a weapon is not justification for a Terry stop; there must be additional facts present.² Most notably, the Pennsylvania Supreme Court recently reconsidered its landmark case that

held that the "possession of a concealed firearm by an individual in public is sufficient to create a reasonable suspicion that the individual may be dangerous, such that an officer can approach the individual and briefly detain him in order to investigate whether the person is properly licensed."

Commonwealth v. Hicks , ––– Pa. ––––, 208 A.3d 916, 921 (2019) (quoting Commonwealth v. Robinson , 410 Pa.Super. 614, 600 A.2d 957, 959 (1991) ). After reviewing its own laws, which allow properly licensed individuals to carry a concealed firearm, the United States Supreme Court cases that interpret the Fourth Amendment, and other states’ case law, the court determined that the holding in Robinson violated the Terry doctrine and overruled it. Hicks , 208 A.3d at 924–47. The court ultimately...