The struggle to educate Florida’s law enforcement officers and agency heads continues and recent arrest/ events do not help with the public view of this topic!
On January 30th, 2020 my private message box started going off like crazy. This usually means one of my former students (now law enforcement officer) has a question about a particular firearms law. But not this evening.
The messages were to get me to review and respond to a Facebook post by the Hillsborough County Sheriff’s Office about a firearms arrest they had made. Probably because many of my LEO friends knew that the circumstances described in the original post by HCSO were questionable at best and they wanted me to try and help out by clarifying the law for the HCSO. But a little background is needed first on Florida law enforcement academy training.
In the state of Florida, up until June of 2019, police recruits in Florida received no training in the police academy on Florida’s rather complicated and lengthy firearms laws. Yes you read that correctly, ZERO, none, nada, zilch training on what one would think are very important laws for both law enforcement and citizens alike. Now this does not mean that agencies did not do any in-service training (on going training that officers go through on a regular basis) on this topic. I know that my local agencies did some great training on this topic and trained every officer/deputy on the firearms laws in Florida. But sadly I cannot say this is the case for most of the larger departments.
I noticed this lack of training about 4 or 5 years ago in the curriculum being used and began to work with the Criminal Justice Standards and Training Commission to try and get some material added to the curriculum so that all officers state wide would get at least some training on firearms laws. After several years of learning how slow this process is, this last June the CJSTC added a short lesson in the training text books and now every recruit in Florida is taught some information about the firearms laws in Florida. While I do not think it is in depth enough, I am happy they at least get some training in it now. But therein lies the problem. Officers who graduated before this addition happened did not get any training and it is beginning to show as more and more Floridians are carrying firearms for self protection. More than 2.1 MILLION people in Florida have Concealed Weapons and Firearms Licenses. That does not include those who carry firearms in their vehicles as allowed by Florida laws.
So back to the incident in Hillsborough County. From a description given by the HCSO itself:
On Thursday, January 30, at approximately 5:54 a.m. an HCSO deputy was driving onto I-75 from Fowler Avenue in Tampa. The deputy observed a white 2018 extended cab Ford F-150 pickup truck immediately behind the patrol car with high beam lights on and following too closely. The pickup truck crossed all lanes of traffic to get into the left lane of the highway and began speeding. The deputy looked over at the truck and could not see into the windows due to a very dark level five tint, which was later tested at the scene and found to be in violation.
The deputy pulled up behind the truck two separate times, both times flashing emergency lights, however, the driver did not stop or slow down. Instead, he continued to speed at a rate of 87 mph. When the driver ultimately decided to pull over, the deputy approached the pick up truck on the passenger side for safety due to traffic.
Stephen Michael Frisco (DOB 07/26/95) was in the sole occupant in the vehicle. The deputy did a visual sweep inside the pickup truck and noticed a rifle wedged between the passengers seat and the center console, rifle end down. The deputy asked Frisco for his driver’s license, where he was coming from and going to, if his rifle was real and if he had any other weapons in the truck.
Frisco told the deputy he was coming from a residence in Pasco County and headed to his place of employment in Bartow. He said the rifle was real and that he had several other weapons in the truck. Frisco said he does not have a concealed carry permit.
𝐅𝐑𝐈𝐒𝐂𝐎 𝐖𝐀𝐒 𝐍𝐎𝐓 𝐆𝐎𝐈𝐍𝐆 𝐇𝐔𝐍𝐓𝐈𝐍𝐆, 𝐖𝐇𝐈𝐂𝐇 𝐖𝐎𝐔𝐋𝐃 𝐇𝐀𝐕𝐄 𝐁𝐄𝐄𝐍 𝐇𝐈𝐒 𝐎𝐍𝐋𝐘 𝐋𝐄𝐆𝐀𝐋 𝐄𝐗𝐂𝐄𝐏𝐓𝐈𝐎𝐍 𝐓𝐎 𝐇𝐀𝐕𝐈𝐍𝐆 𝐇𝐈𝐒 𝐑𝐈𝐅𝐋𝐄 𝐎𝐔𝐓.
At this point, the deputy asked Frisco to exit the vehicle due to probable cause for an arrest. The deputy searched Frisco’s vehicle and found three loaded handguns — no cases and ready to use — in addition to loaded magazines beneath the center console. Additional loaded magazines were found in the glove box. In Florida, open carry is unlawful (2nd degree misdemeanor).
Frisco was arrested for Open Carrying of a Weapon and Carrying a Concealed Firearm (3 counts). He was also cited for failing to dim headlights 300 feet behind a vehicle and received only a warning for speeding and the tinted windows violation.
We want to reiterate that in 𝐍𝐎 𝐖𝐀𝐘 were Mr. Frisco’s rights violated. As a law enforcement agency, we just ask that anyone who chooses to exercise their rights to carry a firearm does so within the law.http://bit.ly/37UcsJC
If you know Florida firearms law you may immediately see the issue with this incident. First in Florida is legal to have a long gun (rifle or shotgun) anywhere in the passenger compartment of your vehicle. F.S.S. 790.25(5) covers this:
(5) POSSESSION IN PRIVATE CONVEYANCE.—Notwithstanding subsection (2), it is lawful and is not a violation of s. 790.01 for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use. Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for a lawful use. Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. This subsection shall be liberally construed in favor of the lawful use, ownership, and possession of firearms and other weapons, including lawful self-defense as provided in s. 776.012.
So let’s break down the incident as described by the HCSO itself and I will attempt to explain the issues I see. First the stop itself was made for a traffic infraction, a civil issue and not a criminal one. The description then goes on to say that “The deputy did a visual sweep inside the pickup truck and noticed a rifle wedged between the passengers seat and the center console, rifle end down. The deputy asked Frisco for his driver’s license, where he was coming from and going to, if his rifle was real and if he had any other weapons in the truck.” It is important to note that at this point Mr. Frisco has not done anything criminal as far as the Deputies know since the carrying of the rifle in that manner is legal, AND they do not know if the handguns are being carried in a legal manner or not yet since they cannot see them. In Florida you may carry a handgun in your car if you have a CWFL or if you meet certain criteria under F.S.S. 790.25(5).
This is where things went wrong because of the lack of knowledge of the Florida firearms laws: “At this point, the deputy asked Frisco to exit the vehicle due to probable cause for an arrest. The deputy searched Frisco’s vehicle and found three loaded handguns — no cases and ready to use — in addition to loaded magazines beneath the center console. Additional loaded magazines were found in the glove box. In Florida, open carry is unlawful (2nd degree misdemeanor).” Now since the rifle was carried legally there actually was no probable cause (legal term meaning a strong reason to believe) to arrest Mr. Frisco at this point and the “search incident to arrest” is therefore improper. The handguns were located during the search incident to the arrest and the arrest was not proper. In addition there needs to be a little more clarification on where the handguns were located.
The description says they were located: “The deputy searched Frisco’s vehicle and found three loaded handguns — no cases and ready to use — in addition to loaded magazines beneath the center console.” What is “beneath the center console”? Do they mean inside? My center consoles on all of my vehicles have a lid and open and close. If the handguns were inside the center console, and the lid closed, the handguns were then being carried legally. The law in Florida makes it legal to carry a handgun in your vehicle without a concealed carry permit if you do one of two things:
“it is lawful and is not a violation of s. 790.01 for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use.”http://bit.ly/2uPMFDI
One must then look at the definition of those two terms “securely encased” or “not readily accessible for immediate use”. Lucky for us those terms are defined in the laws. F.S.S. 790.001 (16) and (17) define these:
“(16) Readily accessible for immediate use” means that a firearm or other weapon is carried on the person or within such close proximity and in such a manner that it can be retrieved and used as easily and quickly as if carried on the person.” and
“(17) “Securely encased” means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access.”
This is where the description of where the handguns were found “under” and center console is not helpful. I can’t place anything under my center console, only inside it. If inside of it, it has a lid which requires opening and meets the definition for (17) above. So if the handguns were inside of the center console with the lid closed, they were legally being carried under Florida law. If that was the case then Mr. Frisco did not commit any violations of Florida’s firearms laws and the arrest was for charges that do not exist. I would like for HCSO to clarify where the handguns were located.
But where the handguns were may be a moot point in that of the Deputies removed Mr. Frisco from his vehicle based on arresting him for the rifle (which turned out not to be a crime at all) then the discovery of the handguns is tainted and not usable for charging him either. Additionally if the Deputies suspected Mr. Frisco of a crime (Specifically a firearms crime) and after knowing or thinking this they asked him questions about that crime, Miranda issues may also come into play. But that is another subject entirely.
I have offered to assist the Hillsborough County Sheriff’s Office with some free in-service training to help bring their deputies up to speed on the firerms laws. This is a sincere offer in that it helps to protect the deputies and citizens alike. It helps to prevent things like this from happening.
Training our law enforcement in Florida on firearms law is vital to community relations, officer safety, and most importantly citizens rights. This incident should never have happened and could have been prevented by a little education. I hope some deputy or officer somewhere reads this article and it prevents the next incident like this from happening. This is not the first of these types of incidents, but we can strive to make it the last.
While I may not agree with some of the current firearms laws, until they are changed through legislation, they are still the law and we should know them. Plus one minor point to all my LEO friends out there. You do have the discretion to not enforce misdemeanor violations. Sometimes when in doubt or you feel the law itself is not proper, discretion is the better choice.