FL3: Possession of firearm justifies frisk, not withstanding concealed carry law

Seeing a firearm on defendant’s person justified a patdown. While Florida is a concealed carry state, the officer does not have to exclude the possibility of a permit before the frisk. Mackey v. State, 83 So. 3d 942 (Fla. 3d DCA 2012):

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, it is beside the point. Mackey was not observed in mere possession of a firearm; rather, he was observed in possession of a concealed firearm, and the officer testified that he observed a “piece of the handle sticking out” of Mackey’s pocket, enabling the officer to identify it as a firearm. It is the concealment of the firearm, not merely its possession, which rendered Mackey’s conduct illegal, and authorized the officer’s actions in this case. Moreover, Mackey’s argument necessarily overlooks the difference between an essential element of the crime and an exception, or affirmative defense, to the crime.