In crimes involving possession of anything, one fruitful area for criminal defense lawyers is to examine whether the search that led to the discovery of the prohibited item was legal. If the search was illegal, the results of the search are “fruit of the poisoned tree” and cannot be used in court—even if they’re the foundation of the prosecution’s case. That’s why I was interested in Mackey v. State, a Florida Supreme Court case examining whether a Miami police officer’s stop of Anthony Mackey was legal. Mackey was carrying a concealed firearm, which was illegal in itself and also because he had been convicted of a felony. He challenged the stop, saying he could have had a license, but the trial court declined to throw out the evidence and he was convicted. The Florida Supreme Court ultimately affirmed this, saying it was not in conflict with a seemingly contradictory ruling.
Mackey was on foot when an officer noticed what looked like a handle of a firearm sticking out of his pocket. The officer approached Mackey and patted him down, finding the weapon. The officer asked if Mackey had a firearms license; Mackey said no and he was arrested. He was eventually charged with carrying a concealed weapon and possession of a firearm by a convicted felon. In court, Mackey moved to suppress the firearm, his identity as a convicted felon and any statements he made after arrest. He argued that the firearm was not concealed and the officer lacked a reasonable basis to conduct an investigatory stop, because nothing indicated that Mackey lacked a firearms license and there were no other indications of criminal activity. The trial court denied the motion, and Mackey ultimately pleaded guilty while reserving his right to appeal. The Third District Court of Appeal upheld the ruling, but certified a conflict with the Fourth District.
The Florida Supreme Court ultimately ruled that the Fourth District decision, Regalado v. State, was not in conflict with this case because their facts were different. At issue in this case is whether Mackey’s stop—called a Terry stop after a U.S. Supreme Court case—was legally valid. A stop and frisk may be valid if the officer reasonably believes crime may be happening, stops the person, identifies him- or herself, and pats the person down out of a reasonable fear for safety. Under the totality of the circumstances in this case, the court said, the officer did have a reasonable belief that Mackey might be involved in a crime. Furthermore, the court said, the officer could see that Mackey had a firearm, so the pat-down was also reasonable and legal. This contrasts withRegalado, the court said, in which the officer stopped the defendant at gunpoint with nothing more than the belief that he was carrying a gun. The high court approved of the Third Circuit’s ruling, though not its reasoning.
Interestingly, this case leaves open the possibility that a “stop and frisk” may be unreasonable if the facts are more likeRegalado’s: a non-consensual encounter with no information of suspicious criminal activity except Regalado’s possible possession of a gun. (The court describes Mackey’s encounter with the officer as “consensual,” which Mackey may disagree with.) Regalado’s conviction was vacated because the mere possession of a gun is not enough evidence of a firearms crime in Florida without information that the defendant is also unlicensed. This could provide useful avenues of defense for people in positions similar to Mackey’s and Regalado’s, but whose encounters with the police were clearly not “consensual.”
If you’re accused of any kind of crime in Florida, don’t hesitate to call Seltzer Mayberg, LLC., for a free consultation. We answer the phone 24 hours a day and seven days a week because we know the police don’t stop working at 5 p.m. To tell us your story and learn more, call us today at1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.
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