EMAS, J.
Anthony Mackey appeals his convictions for carrying a concealed firearm and possession of a firearm by a convicted felon, contending that the trial court erred in denying his motion to suppress. We affirm.
The relevant facts are not in dispute: Officer May, a member of the City of Miami Police Department, was driving his marked patrol car in an area of Miami when he saw Mackey standing alone on one side of a fence by an apartment complex. There were several people standing on the other side of the fence. Officer May slowed down and, as he drove slowly by Mackey, noticed a solid object inside Mackey's pocket. As he drew closer to Mackey, Officer May saw a "piece of the handle sticking out. Not much, but a piece enough for me to identify a firearm." Based upon his training and experience, Officer May was able to identify the object as a firearm. The officer had no prior contact with Mackey, nor did he know whether Mackey had a permit to carry a concealed firearm. There was no evidence that Mackey was engaged in any other criminal or suspicious activity.
Officer May got out of his vehicle, approached Mackey, and asked whether Mackey had anything on him. Mackey replied "no." The officer asked Mackey if he could pat him down.
Mackey filed a motion to suppress the firearm on the basis that the arresting officer lacked the necessary reasonable suspicion to initiate the investigatory stop which led to the pat-down and the discovery of the firearm. Following a suppression hearing, the trial court denied the motion to suppress. Mackey subsequently pled guilty to the two charges, reserving the right to appeal the denial of the dispositive motion to suppress. This appeal followed.
A trial court's ruling on a motion to suppress comes to us clothed with a presumption of correctness. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). The reviewing court must interpret the evidence and reasonable inferences from that evidence in a light most favorable to sustaining the trial court's ruling, and we are bound by the trial court's factual findings if they are supported by competent, substantial evidence. Id. The trial court's application of the law to the historical facts are subject to de novo review. Id.
Mackey argues here, as he did in the trial court, that the firearm should be suppressed because the two undisputed facts—that Mackey was carrying a firearm and the firearm was concealed
In Regalado, a police officer was in his marked patrol car when he was approached by a citizen who advised the officer that "some guy was over there flashing his gun to a couple of friends." The citizen explained that a man in a restaurant had raised his shirt, exposing the gun in his waistband to his friends at the table. The citizen said the man did not remove the gun from the waistband. The citizen provided the officer with a description of the man. As the officer and citizen were talking, Regalado walked by, and the citizen identified him as the man with the gun in the restaurant. The officer asked the citizen for his name, but the citizen refused because he was scared. The citizen then "took off." Id. at 601.
The officer began to follow Regalado and, as the officer got within six to eight feet of Regalado, Regalado turned and looked around. At that point, the officer observed a bulge in Regalado's waistband. Based upon his training and experience, the officer believed it was the butt of a firearm. Because Regalado was nearing a crowd of people, the officer drew his service revolver and ordered the suspect to
The trial court denied the motion to suppress. In a two-to-one opinion, the Fourth District reversed, framing the issue as "whether the stop met the Terry requirements." Id. at 602. The Court held the stop did not meet the Terry requirements, explaining:
Id. at 604 (emphasis added) (internal citations omitted).
Mackey readily and properly acknowledges that the precedent of this Court compels affirmance in the instant case. In State v. Navarro, 464 So.2d 137 (Fla. 3d DCA 1984), this Court, sitting en banc, held that a police officer's observation of a bulge under the clothing of an individual, which the officer in his training and experience determined to be "the outline of a firearm[,] amounted to probable cause to believe that the individual was carrying a concealed weapon, justifying not merely a pat-down, but a search." Id. at 139.
In Hernandez v. State, 289 So.2d 16 (Fla. 3d DCA 1974), the defendant was arrested after an officer saw a portion of a firearm partially protruding from a pocket in his trousers. This Court determined that both the arrest (for carrying a concealed firearm) and the seizure of the firearm were proper.
Mackey does not attempt to distinguish Navarro and Hernandez from the instant case. Rather, he asserts that Regalado is the more well-reasoned decision. We do not agree.
Florida generally recognizes three categories of police-citizen encounters:
When Officer May first approached Mackey to ask him questions, the encounter was a consensual one, and no level of reasonable suspicion was required. When
Mackey contends the arresting officer had no reasonable suspicion to detain him for carrying a concealed firearm. He begins by noting that it is generally not illegal to possess a firearm in Florida. Mackey then argues in his brief, relying again upon Regalado, that "since, under Florida law, carrying a concealed firearm is illegal only if the individual does not have a permit and since the officer had no information suggesting that defendant did not have a permit, the officer lacked reasonable suspicion to stop him for carrying a concealed firearm." Whether, as a general proposition, mere possession of a firearm is not illegal in Florida,
Section 790.01, Florida Statutes (2010) provides in pertinent part:
Under Florida law, the crime of carrying a concealed firearm is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person. Smith v. State, 687 So.2d 875 (Fla. 2d DCA 1997); Wolfram v. State, 568 So.2d 992 (Fla. 5th DCA 1990).
Mackey's argument, and the holding in Regalado, taken to its logical conclusion, would require that a police officer not only have reasonable suspicion of criminal activity, but reasonable suspicion of the non-existence of an affirmative defense to the crime. We decline the invitation to adopt such a holding, which is contrary to both precedent and common sense.
We affirm the trial court's order denying the motion to suppress and, given Regalado's holding that an officer who observes an individual carrying a concealed firearm does not have reasonable suspicion to conduct a Terry stop, we certify express and direct conflict with the decision in Regalado.
Affirmed.