In the United States, the police are not just able to search anyone at any time. The Constitution – specifically the Fourth Amendment – guarantees that individuals are free from illegal search and seizure. If you are searched illegally, there is not usually anything you can do about it in that moment. However, if evidence of illegal activity is found during the search, and that evidence is later used to convict someone of a crime, the conviction may be vacated. That is what happened in this case, heard by the Florida Fifth District Court of Appeal. The laws around what is an illegal seizure and illegal search are very fact specific. Therefore, if you have questions you should talk to a knowledgeable Florida criminal defense attorney familiar with Florida laws and they can help you to figure out whether a search was permissible in your specific circumstances.
Terry Stops
A 1968 case called Terry established the test for what is legal when it comes to “stop and frisk” searches. The test has two prongs. First, for the search to be permissible the police need to have a reasonable suspicion of criminal activity “afoot.” The police need to be able to articulate what makes them suspicious of the behavior; it can’t just be based on a vague feeling or hunch. They don’t need to witness actual criminal behavior, but there needs to be something that they can define as relatable to potential criminal activity.
The second prong that needs to be met for a lawful Terry stop is that the police officer must have a reasonable belief that the person they stopped is armed and dangerous. The purpose of a Terry stop is to make sure that the suspect does not have a weapon on them, it’s not supposed to be a full search.
The Instant Case
The defendant was on probation when he was stopped and frisked. The police found a gun on him. He was arrested for possession of a firearm by a convicted felon and was also charged with a probation violation. He was stopped after an anonymous person told the police that the man appeared to have a gun in his waistband.
In this appeal heard by the Fifth District Court of Appeal in Florida, the defendant was asking that the gun discovered during a Terry stop and frisk be suppressed (i.e. not allowed to be presented as evidence.) He argued that in his case, the police officer did not have the requisite legal suspicion to justify the stop. The appeals court agreed with him and threw out the convictions.
Guns and Terry
The court here relied on precedent and decisions from other districts to find that the mere possession of a gun doesn’t provide the requisite suspicion needed for a Terry stop. At the time he was frisked, the police had no reason to know that he was on parole and that he was not allowed to carry a firearm. Thus, just because someone has a weapon does not mean they can be stopped and frisked without additional evidence of potential criminal activity.
Contact an Experienced Tampa Criminal Defense Attorney Today!
Criminal charges are a very serious matter. Luckily, there are many laws in place that help to protect criminal defendants from illegal actions by the police and other law enforcement. The experienced Tampa criminal defense attorneys at Hanlon Law Firm can look at your case and see whether there were any errors that may result in the conviction being thrown out or reduced. Call our offices at (727) 897-5413 or contact us online to speak with our attorneys about your case as soon as possible.
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