A Lesson in Reasonable Suspicion

guns.jpgSo, we can all agree that America is the Land of the Free, but just how free are we? The NSA, and other three-letter government entities, are monitoring our every move. Ok, I admit that Big Brother is an easy target these days, but to make matters worse, even local law enforcement seems to be watching us with a similar intensity. Downtown Orlando has video cameras everywhere. Some folks would argue that, if the cops follow you long enough, they'll come up with something. That's just what happened in the recent case of Pamphile v. State, 110 So. 3d 517 (Fla. 4th DCA 2013).

Pamphile was doing something perfectly legal--shopping at a gun show in West Palm Beach. Nothing wrong with that. But, as you know, certain legal activities draw more law enforcement attention than others. It would make you sick to see how much of your tax payer dollars is spent monitoring perfectly legal activity. In this case, there was a task force of tax payer dollars spent on agents from the Bureau of Alcohol Tobacco and Firearms (ATF), members of the Palm Beach County Sheriff's Office, and West Palm Beach Police officers. These agents were working undercover at the gun show, and attempting to stop "straw purchases" of guns--a transaction in which a legal gun buyer purchases a gun for someone not permitted to have a gun.

When Pamphile entered the gun show with another individual, they looked at a few things together, and then split up. This caused the undercover agents some concern that they may have a straw purchase on their hands. The agents watched the defendant on and off for two hours. During this time, Pamphile purchased an AK-47, and openly carried it to his vehicle in the parking lot. So, any hopes of getting an arrest for carrying a concealed firearm were shot down at that point. The agents also overheard Pamphile claim he was bringing the gun to New York (it "can" be illegal to transport a weapon from one state to another, but this is a story for another day). Once Pamphile drove off with his friend, the agents had his vehicle stopped about a half a mile down the road. When he went to get his driver's license, a fraudulent California driver's license slipped out. Ops.

After tons of taxpayer dollars on this operation, don't you feel safer knowing that these three government agencies were able to make one felony arrest for unauthorized possession of a driver's license? But Pamphile lawyered up, and like any good criminal defense lawyer, Pamphile's attorney filed a motion to suppress, arguing that the cops had no reason to stop him--as they observed nothing illegal. The trial judge disagreed, finding that the agents saw "him commit a violation of the law by carrying a gun openly out in the parking lot." Id. At 519. The Defendant appealed, and this appellate decision makes for a good discussion of a typical motion to suppress based upon the lack of reasonable suspicion to stop a defendant.

CRIMINAL DEFENSE 101: Here's the question: What right did the officers have to pull over Pamphile? Technically, the argument is that "in order to stop and detain a person for investigation, a law enforcement officer 'must have a reasonable suspicion that the person has committed, is committing, or about to commit a crime." Id. Now, in case you haven't noticed, there is often a large gap between what law enforcement believes to be "suspicious", and what is--legally speaking--a reasonable suspicion of criminal activity. For example, a white guy with dreadlocks is, to me, reasonable suspicion of the possession of cannabis. But legally, the police would have no right to stop such a person. I'm going to break down for you what the cops thought was "reasonable suspicion", versus what the law states it is.

COP'S FIRST EXCUSE FOR STOPPING DEFENDANT: Given the fact that Pamphile arrived with a friend and split up to shop, this indicates a potential "straw purchase". Such a split up indicates a reasonable suspicion of a criminal gun purchase.

COURT's RESPONSE: Really? You expect us to believe that???? Specifically, the court stated that "this behavior is not indicative of criminal activity because, if it were, then anytime a group of individuals attended a gun show and separated for any period of time, law enforcement would have the legal right to stop and detain those individuals if a purchase was made." Now, if they saw Pamphile exchange money with his friend, that would be a different story....

COP's SECOND EXCUSE FOR STOPPING DEFENDANT: The agents overheard Pamphile stating that he was going to take the gun up to New York.

COURT'S RESPONSE: Really? You think that passes for reasonable suspicion??? Specifically, the court stated that there was no evidence "that the defendant was going to sell the gun in New York or transport it in an illegal manner, thereby engaging in illegal activity...the ATF agent testified that...the gun could be legally transported if the proper procedures were followed." Id. At 520.

COP'S THIRD EXCUSE FOR STOPPING DEFENDANT: There is a five day waiting period for a gun, and Pamphile didn't wait five days. As such, he violated a county ordinance. But, if Pamphile had a concealed weapons permit, he would not have to wait the five days, but the cops never saw Pamphile display his permit. Remember, to defeat a motion to suppress, the prosecutor only needs one of these excuses to stick. So if the judge finds that one of these excuses is "reasonable", the officers then had the right to stop Pamphile, and ultimately see his fake ID. And so on, and so on.

COURT'S RESPONSE: Really? To quote the court, again, "the agent admitted that he and the other agents were not watching the defendant the entire time. Thus, the agents' failure to observe the defendant show his concealed weapons permit to the dealer, when such permit allowed him to legally obtain the weapon without waiting under both the county ordinance and Florida law, was not a reasonable basis to believe he had committed a crime." Id. at 521. Are you getting the feeling as to where this case is heading? I thought so, but the cop's thought up one more reason....

COP'S FOURTH EXCUSE FOR STOPPING DEFENDANT: Pamphile openly carried the firearm as he left the gun show and headed to the parking lot.

COURT's RESPONSE: Have you read the law???? Let's take you back to law school, and a reading of the statute which prohibits the open carrying of a firearm has a few exceptions, ready? Basically, it is lawful for a person to carry an unloaded firearm openly "from the place of purchase to his or her home or place of business." Ops. If the gun was loaded, we'd have a different issue, but the agents never presented evidence the gun was loaded.

For the reasons above, Pamphile's felony charges were thrown out by the appeals court. And that's your reasonable suspicion & motion to suppress lesson for the day, compliments of the fine judge's of the Fourth District Court of Appeals.