By Herron Bond

In Mackey v. State (SC12-573), the Florida Supreme Court considered the circumstances under which a police officer is permitted to conduct an investigatory stop based on a belief that someone is carrying a concealed firearm. The Court affirmed Mackey’s conviction and sentence for carrying a concealed weapon and affirmed the denial of his motion to suppress evidence.

During a routine patrol in March of 2010, an officer with the Miami Police Department spotted what he believed to be the grip of a handgun protruding out of the pocket of the Defendant, Anthony Mackey. The officer stopped and questioned Mackey, who denied carrying a firearm. When the officer requested to perform a search, Mackey “just shook his head…[and] put…[his] hands behind his back.” The search uncovered that the item in question was, in fact, a handgun and Mackey was charged with carrying a concealed weapon.

Mackey sought to have certain evidence, including the firearm, suppressed on the basis that the investigatory stop was improper. He claimed that, absent facts or circumstances suggesting that he was not licensed to carry the gun, the officer lacked the reasonable suspicion required to conduct the stop. In support of his argument, Mackey pointed to Regalado v. State, 25 So. 3d 600 (Fla. 4th DCA 2009). In that case, an officer was informed that a man in a restaurant revealed a handgun in his waistband to his companions. After the man declined to divulge his name and exited the restaurant, the officer followed him and, with his gun drawn, ordered him to the ground. The 4th DCA vacated the man’s conviction for carrying a concealed firearm after finding that the officer lacked a reasonable suspicion that he was unlicensed.

The trial court (located in the third district) denied Mackey’s motion to suppress after finding that Hernandez v. State, 289 So. 2d 16, 17 (Fla. 3d DCA 1974) precluded the application of Regalado. In Hernandez, the 3rd DCA affirmed an arrest where the officer could see part of a firearm protruding from the defendant’s pocket. On appeal in the present case, the 3rd DCA affirmed the decision of the trial court, stating: “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.” Thus, the officer only needed reasonable suspicion that Mackey was carrying a firearm, not that he was unlicensed, in order to conduct an investigatory stop. The Florida Supreme Court granted review to resolve the express conflict with the decision in Regalado.

First, the Florida Supreme Court ruled that the lack of a license is not an element to the crime of carrying a concealed weapon, but an affirmative defense. They reached this conclusion by analyzing the structure, scheme, and plain meaning of section 790.01, Fla. Stat.

More importantly, the Court found that the investigatory stop conducted by the officer in this case was proper under the Fourth Amendment of the United States Constitution, which grants freedom from unreasonable searches, and Article I, Section 12, of the Florida Constitution, which adopts that amendment for state law purposes.

The Court pointed to Terry v. Ohio, 392 U.S. 1, 5 (1968), in which the US Supreme Court laid out the test for determining whether an investigatory stop is valid under the Fourth Amendment:

“where a police officer observes unusual conduct which leads him reasonably to 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, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, 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 persons in an attempt to discover weapons which might be used to assault him.”

The Court ruled that the officer had a “reasonable, articulable suspicion to believe that Mackey was engaged in illegal activity.” To find the officer’s belief reasonable, they looked at several pertinent facts in the case: Mackey was spotted in a part of town know for gun violence and criminal activity, part of his gun was visible to the officer and he lied to the officer about possessing the handgun. Thus, the search was valid under the Fourth Amendment of the United States Constitution and Article I, Section 12, of the Florida Constitution.

The Court distinguished this case from Regalado because of the officer’s non-threatening demeanor, Mackey’s lie, and the consensual nature of their encounter.