On May 29, 2020, Florida’s First District Court of Appeal held that a person cannot be seized simply for possessing a concealed firearm. This is huge in Florida because the law has not been clear on this issue. The Florida Supreme Court has had an opportunity to address this issue and has failed to do so thus far. As such, until they do, Kilburn v. State, 45 Fla. L. Weekly D1303a (Fla. 1st DCA 2020), will control throughout the State. Without this ruling, approximately 1 out of every 7 citizens (the number of concealed carry holders) over the age of 21 would be subject to a search and seizure by law enforcement simply by possessing a concealed firearm. By analogy, we don’t stop driver’s just to see if their license is valid; we shouldn’t stop concealed carriers just to see if they have a license to carry. Let’s dive into it.


Facts of the Case

At approximately 8:30 a.m., an Escambia County Sheriff’s Deputy noticed a pickup truck parked behind a hotel. There was nothing illegal about the way the vehicle was parked. However, the deputy noticed that the door was open and that the license plate was covered by a translucent cover (side note, don’t put them on your vehicle. It’ll give the cops an excuse to pull you over). The deputy approached simply to see what was going on and to talk to the driver about the license plate cover. Law enforcement is allowed to conduct consensual encounters; i.e., they can approach anyone to talk but they can’t prevent them from avoiding the encounter without additional suspicion of criminal activity. As long as the person is willing to engage, it’s a legal encounter.

However, as he was approaching, Kilburn put his hands in the air (he didn’t need to) and it expose the butt of a handgun inside of his waistband. At this point the deputy approached and directed Kilburn to the side of his vehicle. He cuffed Kilburn and placed him inside the patrol vehicle. He then read Kilburn his Miranda rights and inquired whether Kilburn possessed a concealed carry permit. When Kilburn responded that he did not possess a permit, he was arrested and charged with the third-degree felony of possession of a concealed firearm.


Court Rules That the Arrest was Illegal

At the trial court level, the deputy testified that he had no basis to detain Kilburn other than observing the handgun in the waistband. The trial court denied the suppression motion, stating that simply viewing the weapon was enough to detain to inquire whether it was legally so concealed. It stated that having a permit was more of an affirmative defense.

The First DCA reversed, as indicated above. The Fourth Amendment to the United States Constitution as well as the Florida Constitution requires reasonable suspicion of criminal activity and reasonable suspicion that a person is armed in order to stop-and-frisk the person. In this case, while the deputy knew Kilburn was armed, he had no basis to believe that he possessed the firearm and was concealing it illegally. The Court stated:

“Without a reasonable suspicion of criminal activity, the officer cannot go further. Bearing arms is not only legal; it also is a specifically enumerated right in both the federal and Florida constitutions. See Norman v. State, 159 So. 3d 205, 212 (Fla. 4th DCA 2015) (holding that based on the Second Amendment, “it is clear that a total ban on the public carrying of ready-to-use handguns outside the home cannot survive a constitutional challenge under any level of scrutiny”), approved, 215 So. 3d 18 (Fla. 2017). The citizens of Florida have spoken through their Legislature and have stated that those who possess a license to carry a concealed weapon have the right to carry a concealed firearm.”

Additionally, the court reviewed Fla. Stat. 790.01. Based on the language of the statute, the Court reasoned that the possession of a license to carry a concealed firearm is not an affirmative defense; law enforcement must have reasonable suspicion that the person does not possess such a license prior to seizing a person based on mere concealed possession of a firearm.


Call a Board-Certified Attorney Today

Adam Bantner is board certified by the Florida Bar as an expert in criminal trial law. Additionally, he has been named a Super Lawyers Rising Star every year since 2012 and to Florida Trend’s Legal Elite in 2020. If you or someone you know is facing a concealed carry charge, give him a call today at 813.397.3965 to set up your free consultation!