In a criminal case just south of Jacksonville, Florida, the defendant was arrested for possession of a firearm by a convicted felon after an employee at a restaurant called the police and reported that he appeared to have a gun in his waistband. There was no indication the defendant pulled out a gun, was acting in a suspicious manner or used or held it in a threatening manner. When the police arrived, they saw a bulge in the defendant’s waistband but could not tell it was a gun. The police officer patted the defendant down and discovered the gun. Afterwards, they determined that the defendant was a convicted felon.
The criminal defense lawyer filed a motion to suppress the evidence of the gun because it was not a legal search. In order for the police to legally search a person, or just pat a person down for weapons, the police must, at a minimum, have reasonable suspicion that the person is involved in criminal activity. In order for the police to conduct a stop and frisk, the police must have reasonable suspicion that the person is armed and dangerous.
In this case, the police did not have reasonable suspicion of criminal activity. It is not illegal to carry a gun in Florida. Therefore, the fact that a person has a gun in public is not evidence of criminal activity. It might be illegal for a person to carry a concealed weapon in public, but only if that person does not have a concealed firearms permit. When the police stopped and patted the defendant down, they did not know whether or not he had a concealed firearms permit. Therefore, they did not have evidence he was committing a crime even if they knew he had a gun concealed in his waistband.
This was a case where the police could easily have obtained the evidence they needed to support a pat down and an arrest. Had they approached the defendant and asked him the proper questions, they surely could have followed the law and conducted a proper investigation. However, they were lazy and went straight to a pat down without the proper legal justification so the case was ultimately thrown out.