Explore The NRA Universe Of Websites

APPEARS IN News

Florida Court Recognizes Popularity of Carry Permits, Rules Police Cannot Use Possession of a Gun as Sole Basis for Investigatory Stops

Monday, June 22, 2020

Florida Court Recognizes Popularity of Carry Permits, Rules Police Cannot Use Possession of a Gun as Sole Basis for Investigatory Stops

An appellate court in Florida recently decided that a police officer who sees a firearm when approaching a citizen is not permitted to rely exclusively on the possession of the firearm as the justification for an investigatory stop and search. Bearing arms is not only a lawful activity, it is a specifically enumerated rightprotected under both the state and federal constitutions. Taking into consideration the sheer number of persons in the state who are permitted to carry concealed weapons, this potentially lawful activity cannot be the sole basis for a detention. If this were allowed, the Fourth Amendment would be eviscerated.

The background of the ruling was a stop and arrest made by Deputy Beach of the Escambia County, Florida Sheriffs Office. He testified that while he was at a motel parking lot at 8:30 in the morning, he noticed a truck with a translucent cover over the license plate. A man was sitting in the drivers seat and the officer approached him to discussthe license plate cover. The man – Stanley Kilburn – got out of the truck holding a knife, but when he saw the officer he placed the knife inside the truck and raised his hands. Once Kilburn raised his hands, Deputy Beach was able to see the butt of a handgun sticking out of his waistband, and immediately detained and searched him. Deputy Beach did not testify as to how long the gun was visible other than to say that it was concealed, but not really concealed.

It was not until after Kilburn was handcuffed, secured in the police vehicle and given a Miranda warning that Deputy Beach questioned Kilburn and asked whether he had a concealed-weapons license. He did not, and was charged with unlicensed carrying of a concealed weapon. 

While open carry is generally not permitted in Florida, a person licensed to carry concealed and carrying a firearm in a concealed manner may briefly and openly display the firearm to the ordinary sight of another.

Under long-standing United States Supreme Court precedent, Terry v. Ohio, both a reasonable suspicion that criminal activity is afoot and a reasonable suspicion that the subject might be armedis required before a law enforcement officer may perform a stop-and-frisk” search. Kilburn sought to suppress the evidence of the gun, claiming the officer had insufficient cause to detain him and that the officers actions were accordingly illegal.

Deputy Beach specifically testified at the trial court hearing that he did not have reasonable suspicion of any criminal activity by Kilburn (past, present or impending); the sole cause of the detention and arrest was the partially visible firearm.

The trial court looked to two previous but inconsistent cases for guidance. In the first, Regalado v. State (Fla. Dist. Ct. App. 2010), the court held that the police could not detain a person solely on the ground that he possessed a gun. In the later case, Mackey v. State (Mackey I) (Fla. Dist. Ct. App. 2012), the court ruled that, even without reasonable suspicion, an officer could stop someone based on mere possession of a gun until the officer could confirm the gun was legally carried.

The trial court in this case opted to follow the Mackey decision that even without a reasonable suspicion that a crime had been or was about to be committed, an officer should not be prohibited from detaining anyone seen with a firearm. The appellate brief filed by Kilburn noted that one of the findings the trial court made in support of its decision was that most people who carry a concealed firearm probably do not have a permit.However, there was no competent substantial evidence to support this finding, and in fact, between 1999 and 2016 the number of permit holders has increased over 400 percent…”

On appeal, a divided panel of the District Court of Appeal of Florida reversed, finding that the trial court ruling was contrary to law.”  

Simply possessing a firearm in public was insufficient to create the necessary reasonable suspicion for an investigatory stop by police, because it was legal to carry a firearm in Florida with a concealed-weapons license and the persons status as a licensee could not be determined by mere observation. The deputy confirmed that he had no other reason for seizing the appellant other than the fact that he was armed,and did not ask about a license until after Kilburn has been arrested and taken into custody. There was no evidence that Kilburns gun was intentionally displayed in an angry or threatening manner.

The appellate court also relied on a change in the law on the unlicensed carryingcrime that occurred after the Regalado and Mackey decisions. The amendment clarified that the prohibition did not apply to anyone lawfully carrying a concealed firearm, either pursuant to a license or while evacuating an area during a mandatory state of emergency order. This statutory change made it even more clear that a law enforcement officer may not use the presence of a concealed weapon as the sole basis for seizing an individual.

A critical factor in the courts decision, though, was the huge number of persons licensed to carry concealed firearms in the state. Unlike the trial courts speculations, the appellate court determined that as of January 2020, over two million residents were licensed to carry concealed weapons, representing over 13% of Floridians over 21 years old. Even so, this number did not include those entitled to carry without a license, such as law enforcement officers, and those carrying under a different license (private investigators and security guards). As emphasized by the court, these numbers meant that approximately one out of every seven persons over the age of twenty-one may lawfully carry a concealed weapon in Florida. The thought that these millions of people are subject to seizure by law enforcement until their licenses are verified is antithetical to our Fourth Amendment jurisprudenceNo court would allow law enforcement to stop any motorist in order to check for a valid drivers license.”

The appellate court granted Kilburns motion to suppress and reversed his conviction. (One dissenting judge would have allowed the evidence and let the conviction stand.)

The decision is Kilburn v. State, No. 1D18-4899, 2020 WL 2781864 (Fla. Dist. Ct. App. May 29, 2020), available here.

TRENDING NOW
U.S. House Passes Reconciliation Bill, Removing Suppressors from the National Firearms Act

News  

Second Amendment  

Thursday, May 22, 2025

U.S. House Passes Reconciliation Bill, Removing Suppressors from the National Firearms Act

Earlier today, the U.S. House of Representatives passed H.R.1 the One Big Beautiful Bill Act, which included Section 2 of the Hearing Protection Act, completely removing suppressors from the National Firearms Act (NFA).

U.K. Moves to Legally De-suppress Suppressors

News  

Monday, July 14, 2025

U.K. Moves to Legally De-suppress Suppressors

On July 4th, President Donald Trump signed into law his “One Big Beautiful Bill,” which included a provision that eliminated the tax stamp fee of $200, but did not deregulate suppressors under the National Firearms ...

Baltimore Gets Serious on Crime Control, and the Results Speak for Themselves

News  

Monday, July 14, 2025

Baltimore Gets Serious on Crime Control, and the Results Speak for Themselves

As the mid-year mark of 2025 hits, a promising report on crime trends has come out of the City of Baltimore. Surprising news at first glance until you dig deeper into the policy direction the ...

House Annual Appropriations Process Update

News  

Monday, July 14, 2025

House Annual Appropriations Process Update

As the House Appropriations Committee is putting together legislation to fund the government, NRA-ILA has worked closely with policy makers to ensure several long-standing priorities for gun owners were included in the underlying bills.

Legacy Media Finally Acknowledges Politization of Public Health

News  

Monday, July 14, 2025

Legacy Media Finally Acknowledges Politization of Public Health

It appears the editors of The Atlantic are finally willing to entertain an idea that has long been obvious to gun rights supporters.

NRA and 2A Allies Announce NFA Lawsuit

Monday, July 7, 2025

NRA and 2A Allies Announce NFA Lawsuit

Following the passage of the “One Big Beautiful Bill”—which eliminates the National Firearms Act of 1934’s (NFA) excise tax on suppressors, short-barreled rifles, short-barreled shotguns, and AOWs—the National Rifle Association issued a joint statement along with the ...

Congress Passes the “One Big Beautiful Bill,” Now Headed to President Trump

News  

Thursday, July 3, 2025

Congress Passes the “One Big Beautiful Bill,” Now Headed to President Trump

Earlier today the U.S. House of Representatives passed the “One Big Beautiful Bill.” This bill contained a provision that would, among other things, eliminate the burdensome $200 excise tax imposed by federal law on suppressors, short-barreled firearms, ...

NRA-ILA July 2025 Litigation Update

Thursday, July 10, 2025

NRA-ILA July 2025 Litigation Update

In the second quarter of 2025, the National Rifle Association filed two cert petitions in the U.S. Supreme Court and five amicus briefs, while continuing to litigate dozens of ongoing lawsuits across the country.

DOJ Declines to Seek Supreme Court Review of Decision Striking Down Federal Laws Prohibiting FFLs From Selling Handguns to 18-to-20-Year-Olds

Thursday, July 10, 2025

DOJ Declines to Seek Supreme Court Review of Decision Striking Down Federal Laws Prohibiting FFLs From Selling Handguns to 18-to-20-Year-Olds

In Reese v. ATF, the Fifth Circuit held that 18 U.S.C. §§ 922(b)(1) and (c)(1)—which together forbid Federal Firearms Licensees from selling handguns to 18-to-20-year-olds—violate the Second Amendment.

Florida: Second Amendment Sales Tax Holiday Signed by Governor

Monday, July 7, 2025

Florida: Second Amendment Sales Tax Holiday Signed by Governor

Governor Ron DeSantis recently signed the Florida Budget for Fiscal Year 2025–2026, which includes a Second Amendment sales tax holiday from September 8 through December 31, 2025. The NRA is thankful for Governor DeSantis’ strong ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.