Mackey v. State

• Decision Date: 17 October 2013
• Docket Number: No. SC12–573.,SC12–573.
• Citation: 124 So.3d 176
• Parties: Anthony MACKEY, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

124 So.3d 176

Anthony MACKEY, Petitioner,

v.STATE of Florida, Respondent.

No. SC12–573.

Supreme Court of Florida.

Oct. 17, 2013.

Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, Miami, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Richard L. Polin, Bureau Chief and Shayne R. Burnham, Assistant Attorney General, Miami, FL, for Respondent.

Eric J. Friday of Fletcher & Phillips, Jacksonville, FL, for Amicus Curiae Florida Carry, Inc.

LEWIS, J.

This case is before the Court for review of the decision of the Third District Court of Appeal in Mackey v. State, 83 So.3d 942 (Fla. 3d DCA 2012). The Third District certified that its decision is in express and direct conflict with the decision of the Fourth District Court of Appeal in Regalado v. State, 25 So.3d 600 (Fla. 4th DCA 2009). We have jurisdiction. Seeart. V, § 3(b)(4), Fla. Const.

FACTS AND BACKGROUND

On March 6, 2010, Officer Alexander May of the Miami Police Department was patrolling in a marked police car during daytime hours in the Overtown area of Miami. Officer May drove by the location of Northwest 2nd Avenue and 12th Street—an area, according to Officer May, that is known for firearms and narcotics. Officer May explained that he “look[s] at a lot of hand motions and waistbands and pockets in this line of work, especially in that area.” While driving slowly, Officer May observed Anthony Mackey standing on one side of a fence. At that time, Officer May noticed that:

[Mackey's] right pocket looked like it was—it was something, a big mass, like a big solid thing in his pocket. And then I looked and it was like a piece of the handle sticking out. Not much, but a piece enough for me to identify a firearm.

Officer May stated that his ability to identify the item in Mackey's pocket as a firearm was based upon his training and experience.

Officer May exited the patrol car and approached Mackey. During a deposition, Officer May explained that he did not draw his service weapon because he was able to observe Mackey's hands. According to Officer May:

I asked him if he had anything on him. He said no, which I already kind of knew. And I asked him if I could pat him down for weapons.¹ I pat him down. I grab—retrieved the firearm.² I asked him why don't you tell me about this. And he just shook his head, put, you know, hands behind his back.

Officer May then asked Mackey if he possessed a concealed weapons license, and Mackey answered in the negative. Thereafter, Officer May, and another officer who stopped to assist, arrested Mackey. Further investigation revealed that a bullet was in the chamber of the firearm. Officer May later confirmed that he had never met Mackey before this incident. On March 29, 2010, the State filed an information charging Mackey with carrying a concealed firearm and possession of a firearm by a convicted felon.³

Mackey subsequently filed a motion asking the trial court to suppress (1) the firearm, (2) Mackey's identity as a convicted felon, and (3) any statements he made after he was detained by police, alleging two bases for suppression. First, he claimed that the firearm was not concealed. Second, and specifically relevant to the certified conflict, Mackey alleged that even if the firearm was concealed for purposes of the statute prohibiting the carrying of a concealed firearm, Officer May lacked reasonable suspicion to conduct the investigatory stop—also referred to as a Terry⁴ stop—because no facts or circumstances indicated that Mackey did not possess a license to carry the firearm. Mackey asserted that because the observations by Officer May did not reveal any suspicion of criminal activity, there was no legal basis for Officer May to conduct the Terry stop. In contending that suppression was required, Mackey relied upon the decision of the Fourth District Court of Appeal in Regalado v. State, 25 So.3d 600 (Fla. 4th DCA 2009).

In Regalado, a person approached a police officer and informed him that “some guy” at a restaurant had raised his shirt and showed his companions a firearm in the waistband of his pants. 25 So.3d at 601. The defendant, Fulvio Regalado, subsequently walked by, and the person identified Regalado as the man who had been “flashing his gun.” Id. When the officer asked the person his name, the person refused to identify himself and departed out of fear. Id. The officer proceeded to follow Regalado and eventually observed a bulge in Regalado's waistband that the officer believed was the butt of a handgun. Id. Since Regalado was walking in a crowded area and had begun to blend into the crowd, the officer removed his weapon and ordered Regalado to the ground at gunpoint. Id. at 601–02. Regalado complied, and upon frisking him, the officer located and seized a firearm. Id. at 602. During the criminal proceedings that ensued, the trial court denied a motion to suppress the firearm, and Regalado was subsequently convicted of carrying a concealed weapon. Id. at 601.

On appeal, the Fourth District vacated Regalado's conviction and sentence, holding that the trial court erred when it denied the motion to suppress. Id. at 607. The Fourth District explained:

Because it is legal to carry a concealed weapon in Florida, if one has a permit to do so, and no information of suspicious criminal activity was provided to the officer other than appellant's possession of a gun, the mere possession of a weapon, without more, cannot justify a Terry stop.

Id. at 601. The Fourth District noted that even though the officer observed a bulge in the waistband of Regalado's pants, which in the experience of the officer looked like a firearm, no facts were presented to demonstrate that Regalado did not possess a license to carry a concealed weapon. Id. at 604. The Fourth District also concluded that the officer had no reasonable suspicion of criminal activity and had not observed any conduct that would constitute a crime or an impending crime. Id. Based on the foregoing, the Fourth District held that the officer lacked the authority to conduct a Terry stop of Regalado and, therefore, the search and seizure violated the Fourth Amendment. Id. at 606–07.

During the hearing on Mackey's motion to suppress, the trial court concluded that it was not bound by the decision in Regalado because the Third District Court of Appeal had previously held in Hernandez v. State, 289 So.2d 16, 17 (Fla. 3d DCA 1974), that an arrest for the offense of possession of a concealed weapon was proper where the officer observed a firearm partially protruding from a pocket in the defendant's pants. The trial court denied the motion to suppress, and later denied a motion for rehearing. Mackey ultimately pled guilty to both charges, but reserved his right to appeal the denial of the suppression motion.

The Third District Court of Appeal affirmed the decision of the trial court. Mackey, 83 So.3d at 943. The district court articulated the standard governing the legality of the Terry stop as follows:

When Officer May asked Mackey if he could conduct a pat-down search, the encounter remained a consensual one. However, when Mackey did not respond to this question and Officer May proceeded to conduct a pat-down search without Mackey's consent, the encounter became an investigatory stop, for which Officer May needed reasonable suspicion. In addition, the pat-down search itself required Officer May to have probable cause to believe that Mackey was armed with a dangerous weapon.

Id. at 945–46 (emphasis supplied). The Third District rejected the rationale expressed in Regalado that where an officer has no information to indicate that an individual who the officer believes to be in possession of a firearm does not have a concealed weapons license, the officer lacks reasonable suspicion to detain that individual to further investigate whether the crime of carrying a concealed firearm is being committed. Id. at 945. According to the Third District:

Under Florida law, the crime of carrying a concealed firearm is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person. The statutory provision which addresses the licensed carrying of a concealed firearm is contained in a subsection separate and distinct from the provision which prohibits the carrying of a concealed firearm. Thus, the absence of a license is not an element of the crime, but is considered an “exception” to the crime, and proof that a defendant possessed a license to carry a concealed firearm must be raised as an affirmative defense.

Mackey's argument, and the holding in Regalado, taken to its logical conclusion, would require that a police officer not only have reasonable suspicion of criminal activity, but reasonable suspicion of the non-existence of an affirmative defense to the crime. We decline the invitation to adopt such a holding....

Id. at 946–47 (citations and footnotes omitted).

Although the Third District held that the trial court had properly denied the motion to suppress, the district court certified conflict with the decision in Regalado on the issue of whether an officer who believes that someone is carrying a concealed firearm, without more, has reasonable suspicion to conduct a Terry stop. Id. at 944, 947. This review followed.

ANALYSIS

First, Florida's legislative scheme causes us to hold that licensure is an affirmative defense to a charged crime of carrying a concealed weapon, as codified at section 790.01, Florida Statutes (2013),⁵ and the lack of a license is not an element of the crime. This conclusion is based upon a clear reading of section 790.01 and consideration of its structure, the chapter of the Florida Statutes that governs firearms and other weapons, and the legal precedent on this issue. Notwithstanding this holding, we have determined that the role of licensure in the Florida legislative scheme is not dispositive of the resolution of the...