MacKey v. State
83 So. 3d 942
Fla. Dist. Ct. App.2012Background
- Officer May observed Mackey with a firearm partially concealed in his pocket in Miami; sighting occurred as he passed by Mackey near an apartment complex fence.
- May approached, asked if Mackey had anything on him, and sought consent to pat down; Mackey initially replied 'no' to carrying items.
- May conducted a pocket pat-down, felt the firearm, identified it as a firearm, and asked about a concealed-weapons permit.
- Mackey admitted no permit; he was arrested for carrying a concealed firearm, and later for possession of a weapon by a convicted felon after a prior felony was discovered.
- Mackey moved to suppress the firearm on the basis of lack of reasonable suspicion; the suppression motion was denied; he pled guilty while reserving the right to appeal the suppression ruling.
- On appeal, the Third District affirmed, holding the stop and resulting arrest were supported by the circumstances and noting a direct conflict with Regalado on whether mere concealment permits a Terry stop.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether observation of a concealed firearm supports a Terry stop. | Mackey argues no reasonable suspicion; concealment alone is not illegal if licensed. | May relies on concealment and lack of license to justify stop. | Stop supported by concealment; affirmed denial of suppression. |
| Whether concealment of a firearm constitutes the crime justifying arrest. | Concealment crime does not depend on license status; officer had no grounds absent unlawful concealment. | Concealed firearm constitutes a crime regardless of license status; arrest proper upon identification. | Concealment renders the crime; arrest proper; license is affirmative defense. |
| Whether Regalado should control the analysis of reasonable suspicion. | Regalado dictates no reasonable suspicion where carrying a concealed weapon with license is possible. | Regalado should limit stop where no illegal act is shown. | Declines Regalado as controlling; certifies conflict with Regalado. |
Key Cases Cited
- Navarro v. State, 464 So.2d 137 (Fla. 3d DCA 1984) (bulge viewed as outline of firearm justified probable cause to search)
- Hernandez v. State, 289 So.2d 16 (Fla. 3d DCA 1974) (arrest and seizure proper after firearm exposure)
- Regalado v. State, 25 So.3d 600 (Fla. 4th DCA 2010) (stop did not meet Terry requirements; gun in waistband with permit unknown)
- Watt v. State, 31 So.3d 238 (Fla. 4th DCA 2010) (concealed-weapon license defense is an affirmative defense)
- Robarge v. State, 450 So.2d 855 (Fla. 1984) (statutory analysis: license defense as exception, not element)