Mackey v. State

• Decision Date: 14 March 2012
• Docket Number: No. 3D10–2415.,3D10–2415.
• Citation: 83 So.3d 942
• Parties: Anthony MACKEY, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

83 So.3d 942

Anthony MACKEY, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D10–2415.

District Court of Appeal of Florida, Third District.

March 14, 2012.

[83 So.3d 943]

Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Nikole Hiciano and Shayne Burnham, Assistants Attorney General, for appellee.

Before CORTIÑAS, EMAS and FERNANDEZ, JJ.

EMAS, J.

Anthony Mackey appeals his convictions for carrying a concealed firearm and possession of a firearm by a convicted felon, contending that the trial court erred in denying his motion to suppress. We affirm.

The relevant facts are not in dispute: Officer May, a member of the City of Miami Police Department, was driving his marked patrol car in an area of Miami when he saw Mackey standing alone on one side of a fence by an apartment complex. There were several people standing on the other side of the fence. Officer May slowed down and, as he drove slowly by Mackey, noticed a solid object inside Mackey's pocket. As he drew closer to Mackey, Officer May saw a “piece of the handle sticking out. Not much, but a piece enough for me to identify a firearm.” Based upon his training and experience, Officer May was able to identify the object as a firearm. The officer had no prior contact with Mackey, nor did he know whether Mackey had a permit to carry a concealed firearm. There was no evidence that Mackey was engaged in any other criminal or suspicious activity.

Officer May got out of his vehicle, approached Mackey, and asked whether Mackey had anything on him. Mackey replied “no.” The officer asked Mackey if he could pat him down.¹ The officer proceeded

[83 So.3d 944]

to conduct a pat-down of Mackey's pocket and felt the firearm he had seen earlier. Officer May retrieved the firearm and inquired whether Mackey had a permit to carry a concealed firearm. Mackey indicated he did not, after which Officer May arrested Mackey for carrying a concealed firearm. It was later determined that Mackey had a prior felony conviction, resulting in the additional charge of possession of a weapon by a convicted felon.

Mackey filed a motion to suppress the firearm on the basis that the arresting officer lacked the necessary reasonable suspicion to initiate the investigatory stop which led to the pat-down and the discovery of the firearm. Following a suppression hearing, the trial court denied the motion to suppress. Mackey subsequently pled guilty to the two charges, reserving the right to appeal the denial of the dispositive motion to suppress. This appeal followed.

A trial court's ruling on a motion to suppress comes to us clothed with a presumption of correctness. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). The reviewing court must interpret the evidence and reasonable inferences from that evidence in a light most favorable to sustaining the trial court's ruling, and we are bound by the trial court's factual findings if they are supported by competent, substantial evidence. Id. The trial court's application of the law to the historical facts are subject to de novo review. Id.

Mackey argues here, as he did in the trial court, that the firearm should be suppressed because the two undisputed facts—that Mackey was carrying a firearm and the firearm was concealed ²—do not, standing alone, provide reasonable suspicion to warrant an investigatory stop. Mackey contends that, since it is legal to carry a concealed firearm in Florida if you have a license to do so, the officer did not have reasonable suspicion unless and until he had reason to believe that Mackey did not have such a license. For this proposition, Mackey relies on the decision of Regalado v. State, 25 So.3d 600 (Fla. 4th DCA 2010).

In Regalado, a police officer was in his marked patrol car when he was approached by a citizen who advised the officer that “some guy was over there flashing his gun to a couple of friends.” The citizen explained that a man in a restaurant had raised his shirt, exposing the gun in his waistband to his friends at the table. The citizen said the man did not remove the gun from the waistband. The citizen provided the officer with a description of the man. As the officer and citizen were talking, Regalado walked by, and the citizen identified him as the man with the gun in the restaurant. The officer asked the citizen for his name, but the citizen refused because he was scared. The citizen then “took off.” Id. at 601.

The officer began to follow Regalado and, as the officer got within six to eight feet of Regalado, Regalado turned and looked around. At that point, the officer observed a bulge in Regalado's waistband. Based upon his training and experience, the officer believed it was the butt of a firearm. Because Regalado was nearing a crowd of people, the officer drew his service revolver and ordered the suspect to

[83 So.3d 945]

the ground. The officer conducted a pat-down, felt the object, determined it was a firearm, and retrieved it. Id.

The trial court denied the motion to suppress. In a two-to-one opinion, the Fourth District reversed, framing the issue as “whether the stop met the Terry requirements.” Id. at 602. The Court held the stop did not meet the Terry requirements, explaining:

[T]he 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 of a concealed weapon was without a permit and thus illegal.

The officer admitted in his testimony at the suppression hearing that he had not observed any criminal behavior. He did not see the defendant threaten anyone with a gun,...