Serving Clients During COVID-19. Learn More »

Police Define “Concealed” Firearm As “In Plain View”?

gun glock2.jpgCarrying a Concealed Firearm, or concealed weapon, can be a serious charge, carrying minimum mandatory prison time. The problem is that, many of these cases start with the police “seeing” the firearm. This begs the basic question: if you can “see” the firearm, how can you say it’s “concealed”? Isn’t this basic Webster Dictionary type stuff here, “concealed” means “to place out of sight.” Lucky for us, our courts are able to better define concealed.

My favorite concealed firearm analysis comes from the old case of Donald v. State, 344 Sol.2d 633 (Fla. 2nd DCA 1977). In this case, Mr. Donald was ordered by police to stop walking as they were conducting an investigation into a possible disorderly intoxication case of a drunk man firing shots. Donald complied with the officer’s orders. The officer approached Donald from behind and patted him down, and in the process the officer felt a pistol lodged in the belt on the front side of the defendant. The officer arrested and charged Donald with carrying a concealed firearm, and he was found guilty of that charge. The problem here is obvious; the officer walked up on Donald from behind and felt a gun in the front of Donald. There would be no way for the officer to see whether or not the front of Donald’s shirt actually ‘concealed’ the firearm as the statute requires.

Proof of concealment is an essential element of this crime (duh), and the state must prove beyond a reasonable doubt that the firearm was concealed from the ordinary sight of another person. The appeals court in Donald overturned his conviction, discharging Donald completely. In so doing, the 2nd DCA (District Court of Appeals) noted that the officer never had a good view of the defendant from the front, so he could not testify as to whether or not the gun was visible from the front. Specifically, the officer testified that Donald’s firearm protruded from his pants, yet his shirttail may, or may not, have covered up the gun. So, for now, Florida law remains in step with both Webster’s Dictionary and common sense–concealed means ‘to place out of sight’.