Carrying Concealed Firearms, But Not Really “Carrying”

In Florida, Carrying a Concealed Firearm is a third degree felony, but it can be tough to prove when the firearm is found in a vehicle after a traffic stop. The reason for this is is five little words found in the definition of the crime — “A person who carries a concealed firearm on or about his person commits a felony of the third degree”. Section 790.01(2) Florida Statutes. An all too common scenario here in Orlando is a traffic stop where the driver is ordered out of the car, and the gun is found only after the driver is out of the car. How can a gun be ‘on or about his person’ if the ‘person’ is outside of the car, and the gun is inside the car? And as such, how can an arrest for carrying a concealed firearm occur for a gun that was no where near the driver when found? As you might expect, we’ve found some case law discussing these very points….

The answer rests in the meaning of “on or about the person”, which is defined as “physically on the person or readily accessible to him.” Ensor v. State, 403 So.2d 349 at 354 (Fla.1981). Such was the situation in White v. State of Florida, 902 So.2d 887 (Fla.1stDCA 2005), in which the court found that “although appellant had previously occupied the vehicle in which the firearm was found, and which he admitted was his, he was standing outside the automobile at the time the searching officer recovered the weapon within it.” Id. at 888. Thus, the appeals court overturned White’s conviction for carrying a concealed firearm.

A similar conviction for carrying a concealed firearm was overturned in the case of Lamb v. State, 668 So.2d 666 (Fla. 2d DCA 1996). In Lamb, the defendant was taken into custody outside his parked car and the firearm was later found beneath the driver’s seat. The court held that the evidence was not sufficient to support a conviction for carrying a concealed firearm where the appellant’s firearm was not readily accessible to him at the time of arrest, the court reasoning that there was no evidence that Lamb “carried a concealed firearm ‘on or about his person’ in this instance”. Id. at 668.

But wait, that’s only a review of Florida’s 1st DCA and 2nd DCA (DCA = District Court of Appeals, for those of you keeping track at home…). I’m sorry to get your hopes up, but Orlando’s 5th DCA found that there was enough evidence to support a conviction in case where the defendant was ordered out of the car and in a later search a firearm was found concealed under a seat. J.E.S. v. State, 931 So.2d 276 (Fla. 5th DCA 2006). Why all the disagreement? Why can’t all these courts just get along?

The court in J.E.S.(initials mean juvenile defendant, in case you’ve forgotten) reasoned that the driver was sitting in the vehicle when the police approached, but Lamb was outside the vehicle for some period of time before the police found the gun. Huh? It’s somewhat depressing to see how courts bend over backwards to convict a poor kid. Lucky for you Orlando locals there’s a few good criminal defense lawyers in town.