Regalado v. State

In Regalado v. State, 25 So. 3d 600 (Fla. 4th DCA 2009), a person approached a police officer and informed him that "some guy" at a restaurant had raised his shirt and showed his companions a firearm in the waistband of his pants. 25 So. 3d at 601. The defendant, Fulvio Regalado, subsequently walked by, and the person identified Regalado as the man who had been "flashing his gun." Id. When the officer asked the person his name, the person refused to identify himself and departed out of fear. Id. The officer proceeded to follow Regalado and eventually observed a bulge in Regalado's waistband that the officer believed was the butt of a handgun. Id. Since Regalado was walking in a crowded area and had begun to blend into the crowd, the officer removed his weapon and ordered Regalado to the ground at gunpoint. Id. at 601-02. Regalado complied, and upon frisking him, the officer located and seized a firearm. Id. at 602. During the criminal proceedings that ensued, the trial court denied a motion to suppress the firearm, and Regalado was subsequently convicted of carrying a concealed weapon. Id. at 601. On appeal, the Fourth District vacated Regalado's conviction and sentence, holding that the trial court erred when it denied the motion to suppress. Id. at 607. The Fourth District explained: "Because it is legal to carry a concealed weapon in Florida, if one has a permit to do so, and no information of suspicious criminal activity was provided to the officer other than appellant's possession of a gun, the mere possession of a weapon, without more, cannot justify a Terry stop." Id. at 601. The Fourth District noted that even though the officer observed a bulge in the waistband of Regalado's pants, which in the experience of the officer looked like a firearm, no facts were presented to demonstrate that Regalado did not possess a license to carry a concealed weapon. Id. at 604. The Fourth District also concluded that the officer had no reasonable suspicion of criminal activity and had not observed any conduct that would constitute a crime or an impending crime. Id. Based on the foregoing, the Fourth District held that the officer lacked the authority to conduct a Terry stop of Regalado and, therefore, the search and seizure violated the Fourth Amendment. Id. at 606-07.