Florida Court Throws Out Gun Recovered in Stop and Frisk

The U.S. Constitution and Florida law protect people from unlawful searches and seizures by police officers. That includes stops and frisks on the street. Cops must have a reasonable suspicion to believe that criminal activity is afoot to stop someone in the first place and then have a separate reasonable suspicion to believe that you are armed and dangerous to frisk you for weapons, as Florida’s Fifth District Court of Appeal recently explained in a Florida gun crime case.

Legal News GavelA defendant was on probation when he was arrested and charged with possession of a firearm by a convicted felon. He was also hit with a new charge for violating the terms of his probation. The charges stemmed from an incident in which a worker at a restaurant called local police to tell them that a customer appeared to have a gun in his waistband. The employee said she never actually saw the gun and told the cops she wasn’t sure what the object in the waistband was. She pointed out the defendant as the customer in question when police arrived on the scene.

An officer who approached the defendant later told a judge that he saw a “bulge” in his waistband that appeared to be a gun. The officer didn’t know that he was a convicted felon at the time and didn’t ask whether he had a permit for a weapon. The officer instead proceeded to pat the defendant down. He found a gun on him in the process. A trial judge rejected the defendant’s request that the evidence be excluded from the case against him, arguing that the officer didn’t have a reasonable suspicion to frisk him at the time the weapon was recovered. The trial judge denied that request, but the Fifth District sided with the defendant on appeal.

The court explained that it uses a two-pronged approach to consider whether a police stop and frisk is lawful. First, it said it would look at whether the officer had a reasonable suspicion to believe that “criminal activity may be afoot” in order to stop the person on the street. Then, it looks at whether the officer had a reasonable suspicion to believe that “the person stopped is armed and dangerous” in order to frisk the person. A reasonable suspicion must be based on “specific and articulable facts,” rather than a mere hunch, the court said.

In this case, the court noted that neither the restaurant employee nor the police officer saw the defendant brandish the gun. It also observed that the officer wasn’t aware that he was a convicted felon or on probation at the time. There was also no evidence showing that he was acting suspiciously or that he tried to flee when the officer arrived on the scene.

“There must be something about the circumstances, when considered in total, that reasonably raises a suspicion that a crime has been or is being committed,” the court said. Since there was no such suspicion in this case, the court reversed the defendant’s conviction.

If you or a loved one has been charged with a crime such as firearm possession by a convicted felon in Florida, it is essential that you seek the advice and counsel of an experienced defense lawyer. Clearwater gun crime attorney Will Hanlon is a seasoned lawyer who fights aggressively on behalf of clients charged with a wide range of crimes. Call our offices at (727) 897-5413 or contact us online to speak with Mr. Hanlon about your case.

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