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Carrying a concealed weapon without a license, Search and Seizure

Posted by John P. Rutkowski | Jun 03, 2020 | 0 Comments

The search of defendant conducted by officer who pulled up to defendant's parked vehicle to give a verbal warning regarding defendant's license plate cover and observed the butt of a handgun sticking out of defendant's waistband; The trial court erred in denying motion to suppress. The officer did not articulate reasonable suspicion for a search where the officer expressly stated that the only reason for the search and seizure of defendant was the presence of the handgun. Law enforcement may not use the presence of a concealed weapon as the sole basis for seizing because a potentially lawful activity cannot be the sole basis for a detention. The state's alternative theory that officer lawfully arrested defendant for open carrying of a handgun, which led to a lawful arrest and search of defendant's vehicle where officer discovered an unlawfully concealed weapon, cannot be applied as part of a tipsy coachman analysis [Tipsy Coachman doctrine is a rule of law that upholds, in the appellant court, a correct conclusion despite flawed reasoning by the judge in the trial court. In other words, the lower judgment was right, but for the wrong reason] where trial court conducted no analysis of the factors necessary to determine a violation of open-carry law and made no rulings as to them. Handgun should have been suppressed. Conviction reversed.

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About the Author

John P. Rutkowski

Mr. Rutkowski has been practicing law for the past twenty-four years. Prior to going to law school Mr. Rutkowski served as a deputy sheriff before retiring to attend law school. Upon graduating law school Mr. Rutkowski served as a prosecutor in Florida before going in to private practice.

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John P. Rutkowski, Attorney at Law, is focused on all aspects of Criminal Defense, State and Federal Courts, Post Conviction Relief, Criminal Appeals and Traffic Offenses. Contact me today for a free telephone consultation.

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