Carry in your own home? Sure, but you can be arrested for it.

You have a right to keep and bear arms in your own home, right? Sure, just show your deed to the judge after your’re arrested for it.

Imagine that you’ve just arrived at home and walked in to the house.  As usual, you have a holstered handgun on you, but you don’t have it concealed at your own home.  Seconds later a police officer bursts in and arrests you for the gun you are carrying.

That’s ridiculous, right?  You have a constitutional right to keep and bear arms in your own home!  Right?

Here’s what the 4th DCA said about that scenario the day after independence day this year.

“Here, all three criteria were satisfied:
(1) the officer saw the gun from a place he had a lawful right to be, that is, outside of the defendant’s fenced-in yard;
(2) the incriminating nature of the gun was immediately apparent to the officer based on his experience of having seen thousands of handguns; and
(3) the officer had lawful access to the gun because exigent circumstances existed, that is, the need to seize the gun to protect the officers’ safety.
Bethel v. State, 2012 Fla. App. LEXIS 10802 (Fla. Dist. Ct. App. 4th Dist. July 5, 2012)

That’s right, a police officer driving by who sees a gun through the window can crash down your front door and arrest you at gunpoint for having a gun in your own home by claiming that he needed to stop his car, get out, and seize your holstered handgun for his own safety.  After all, it may not have been “your home” and you were carrying openly.

*** Update ***

I need to make it crystal clear that the scenario where an officer kicks in your door to arrest you is hypothetical and that is not what happened to Mr. Bethel.

Bethel deserved jail and hot pursuit in to the curtilage of his home was OK.

The Court however went farther than that.   The situation I lay out for illustrative purposes is completely feasible given this overreaching decision. Making an officer’s sight of a gun an exigent circumstance because they need to seize the gun to protect the officers’ safety is a huge problem.

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18 Responses to Carry in your own home? Sure, but you can be arrested for it.

  1. Sean Caranna says:

    Now the FL appellate court (4th DCA) says that seeing someone in their own yard or through the window with a gun openly carrying in their own home creates an exigent circumstance allowing a police officer to break in and arrest you. Then you can present the defense later that you were in your own home.

    “The state responded that the officer had probable cause that the defendant was committing the crime of open carrying of a weapon, and that the officer could [*4] enter into the curtilage of the defendant’s house because the officer was in fresh pursuit of the defendant.”
    Bethel v. State, 2012 Fla. App. LEXIS 10802, 3-4 (Fla. Dist. Ct. App. 4th Dist. July 5, 2012)

  2. Erik Asher says:

    That court decision is insane. This needs to be rectified along with a new open carry bill next year.

  3. racer88 says:

    Wait a sec… I thought open carry at home or in your business IS LEGAL in Florida.

    • Sean Caranna says:

      The courts are starting to say that those are only affirmative defenses to the charge of openly carrying.

      See also:
      Mackey v. State, 83 So. 3d 942 – Fla: Dist. Court of Appeals, 3rd Dist. 2012

      “Under Florida law, the crime of carrying a concealed firearm is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person.
      Smith v. State, 687 So.2d 875 (Fla. 2d DCA 1997); Wolfram v. State, 568 So.2d 992 (Fla. 5th DCA 1990).[5]

      The statutory provision which addresses the licensed carrying of a concealed firearm is contained in a subsection separate and distinct from the provision which prohibits the carrying of a concealed firearm. Thus, the absence of a license is not an element of the crime, but is considered an “exception” to the crime, and proof that a defendant possessed a license to carry a concealed firearm must be raised as an affirmative defense.
      Watt v. State, 31 So.3d 238 (Fla. 4th DCA 2010).

      See also State v. Robarge, 450 So.2d 855 (Fla.1984) (holding that under rules of statutory construction, if an exception is contained in a clause subsequent to the enactment clause of a statute, the exception is an affirmative defense rather than an element of the offense); accord Hodge v. State, 866 So.2d 1270 (Fla. 4th DCA 2004).

      Mackey’s argument, and the holding in Regalado, taken to its logical conclusion, would require that a police officer not only have reasonable suspicion of criminal activity, but reasonable suspicion of the non-existence of an affirmative defense to the crime. We decline the invitation to adopt such a holding, which is contrary to both precedent and common sense.

      We affirm the trial court’s order denying the motion to suppress and, given Regalado’s holding that an officer who observes an individual carrying a concealed firearm does not have reasonable suspicion to conduct a Terry stop, we certify express and direct conflict with the decision in Regalado.”

  4. Sean Caranna says:

    “[W]e conclude that the officer had probable cause to believe that the defendant committed the crime of open carrying of a weapon.

    “Probable cause to arrest or search exists when the totality of the facts and circumstances within an officer’s knowledge sufficiently warrant a reasonable person to believe that, more likely than not a crime has been committed.” State v. Blaylock, 76 So. 3d 13, 14 (Fla. 4th DCA 2011) (citation and quotations omitted).

    The misdemeanor crime of “open carrying of weapons” is committed when “any person . . . openly carr[ies] on or about his or her person any firearm or electric weapon or device” except as provided an law. §§ 790.53(1) & (3), Fla. Stat. (2008).

    The totality of the facts and circumstances within the officer’s knowledge sufficiently warranted a reasonable person to believe that the defendant committed the crime of open carrying of a weapon.

    The officer testified that once the defendant exited the car, the officer saw four inches of the butt of a gun sticking out of the defendant’s right pants pocket. The officer immediately recognized that the object was a handgun based on his experience of having seen thousands of handguns. Thus, the officer had probable cause to arrest the defendant for openly carrying on his person a firearm in violation of section 790.053(1).

    Cf. Dorelus v. State, 747 So. 2d 368, 372 (Fla. 1999) (“[A]lthough the observations of the police officer will not necessarily be dispositive, a statement by the observing officer that he or she was able to `immediately recognize’ the questioned object as a weapon may conclusively demonstrate that the weapon was not concealed as a matter of law because it was not hidden from ordinary observation.”) (citation omitted).

    Although the officer acknowledged that some pellet guns and BB guns look very similar to firearms until close inspection occurs, such a theoretical possibility does not defeat a finding of probable cause in light of the officer’s testimony that he immediately recognized the object was a gun based on his experience of having seen thousands of handguns. See Leighty v. State, 981 So. 2d 484, 486 (Fla. 4th DCA 2000) (“In dealing with probable cause as the very name implies, the process does not deal with certainties but with probabilities. These are not technical niceties. They are factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians act.”) (emphasis and citation omitted).

    We further conclude that the officer was able to arrest the defendant by entering into the curtilage of the defendant’s property without a warrant.

    We recognize that “[t]he zone of protection under the Fourth Amendment extends to the curtilage of a home, which includes a fenced or enclosed area encompassing the dwelling.” Tillman v. State, 934 So. 2d 1263, 1272 (Fla. 2006), superseded by statute on other grounds, § 776.051(1), Fla. Stat. (2008).
    However, “[o]fficers are permitted to conduct a warrantless seizure of an item in `plain view’ if (1) the police see the item from a place they have a lawful right to be, (2) the incriminating nature of the item is `immediately apparent,’ and (3) the police have lawful access to the incriminating item.” Oliver v. State, 989 So. 2d 16, 17 (Fla. 2d DCA 2008) (citing Horton v. California, 496 U.S. 128, 136-37 (1990)).

    The third criterion “is simply a corollary of the familiar principle . . . that no amount of probable cause can justify a warrantless search or seizure absent `exigent circumstances.’” Horton, 496 U.S. at 137 n.7 (citation and quotations omitted).

    Here, all three criteria were satisfied:
    (1) the officer saw the gun from a place he had a lawful right to be, that is, outside of the defendant’s fenced-in yard;
    (2) the incriminating nature of the gun was immediately apparent to the officer based on his experience of having seen thousands of handguns; and
    (3) the officer had lawful access to the gun because exigent circumstances existed, that is, the need to seize the gun to protect the officers’ safety. See Riggs v. State, 918 So. 2d 274, 279 (Fla 2005)

    (“The kinds of exigencies or emergencies that may support a warrantless entry include those related to the safety of persons or property, as well as the safety of police.”) (citation omitted).

    Florida law also was satisfied because the defendant committed the crime in the officer’s presence and the officer made the arrest immediately or in fresh pursuit of the defendant. See § 901.15(1), Fla. Stat. (2008) (“A law enforcement officer may arrest a person without a warrant when . . . [t]he person has committed a felony or misdemeanor . . . in the presence of the officer. An arrest for the commission of a misdemeanor . . . shall be made immediately or in fresh pursuit.”).

    The cases upon which the defendant relies are distinguishable. See Regalado v. State, 25 So. 3d 600, 607 (Fla 4th DCA 2009) (reversing an order denying a motion to suppress where neither an anonymous tip nor the officer’s observations of a bulge in the defendant’s waistband revealed any reasonable suspicion of past, present, or future criminal activity);
    Rodriguez v. State, 964 So. 2d 833 (Fla. 2d DCA 2007) (reversing the defendant’s conviction where exigent circumstances did not exist to justify an officer’s warrantless entry into the curtilage of the defendant’s home to arrest the defendant’s husband);
    Oliver, 989 So. 2d at 18 (reversing an order denying a motion to suppress because the incriminating nature of the seized items was not immediately apparent before the officers entered the backyard without a warrant).

    Affirmed.

    Bethel v. State, Fla: Dist. Court of Appeals, 4th Dist. 2012

    • racer88 says:

      “[W]e conclude that the officer had probable cause to believe that the defendant committed the crime of open carrying of a weapon.

      Again… open carry of a weapon is NOT a crime on your own property (business or home). But, in this last comment, it appears the defendant was seen getting out of his car with a gun exposed. So, are they saying he was open carrying OFF his property, in his car, before they arrested him in his home?

      • Sean Caranna says:

        Had they relied on that it would be OK, but they went farther. Now said that just knowing that someone possesses a firearm creates and exigent circumstance. That’s the real problem with this decision.

  5. Erin Palette says:

    What city and county was this? I open carry at home, and when I go outside to my car or to my mailbox, I don’t usually cover up.

    How can they possibly reconcile their ruling with state statute 790.25, Section 3, subsection N, which states that “it is lawful for the following persons to own, possess, and lawfully use firearms… at his or her home or place of business” ?

    The Second Amendment Foundation needs to act on this immediately.

  6. I would suggest that everyone read the complete document before jumping to any conclusions. The person in possession of the firearm was a convicted felon according to the report, and there are other factors involved.

    http://www.4dca.org/opinions/July 2012/07-05-12/4D10-3697.op.pdf

    • Sean Caranna says:

      The fact that the guy was a felon does not change that the arrest and entry to his home was a 4th Amendment violation.

      Had the officer known him to be a felon before the arrest, it would have been fine. The officer had no such prior knowledge.

      The finding by the court that any gun seen by a police officer can be seized regardless other factors is completely wrong-headed.

  7. Sean Caranna says:

    Most FL courts say that carrying a gun is always crime in Florida and there are only affirmative defenses that you can raise to be found “not guilty”.

    Things like, “I was in MY home”, “I was fishing, hunting, or camping”, or “I have a concealed carry license and the gun was concealed” are seen as only being defenses to be raised before a judge.

    As the law stands right now, you can be arrested ANY time you have a gun in your possession.

  8. Sean Caranna says:

    To put is more succinctly, “the ends do not justify the means.”

  9. SiGraybeard says:

    So if Most FL courts say that carrying a gun is always crime in Florida and there are only affirmative defenses that you can raise to be found “not guilty”. and entry to his home was a 4th Amendment violation. then what exactly does our CWFL buy us? That getting raped in the courts ends up being cheaper? You’re going to get arrested no matter what, you’re going to pay for an attorney no matter what, the courts are going to get their fees no matter what, and our CWFL only makes it easier to not go to prison for the long term? What a bunch of bull.

    The mind boggles.

    What about carrying your guns to your car for a trip to the range? There’s the glaring problem for apartment-dwellers, but for homeowners it’s supposed to clearly be legal to do that. What if the police recognize your plastic case, or your rifle bag, and claim they see the weapon? Does that mean you’re subject to arrest?

    What if a cop in your neighbor’s yard looks into your house and sees a gun lying out to be cleaned? Do they break down your door and arrest you? It’s not being carried per se, but it’s plainly visible.

    With all due respect to GunShyTourist, I would suggest that everyone read the complete document before jumping to any conclusions. The person in possession of the firearm was a convicted felon according to the report, there isn’t a shred of evidence that courts and prosecutors ever leave these lines alone or push them back closer to the constitution. They always push them farther. If this guy was under hot pursuit and went into his home, it doesn’t matter. Eventually they’ll use the precedent against people who weren’t being pursued, and then eventually against someone they just observed, who was doing nothing.

  10. Sean Caranna says:

    Let me lay out the current status of law in FL clearly.

    Carrying a gun in Florida is always a crime.

    You have an “affirmative defense” that you were justified in committing that crime in your home, or under your valid concealed carry license, or while hunting, etc…
    The burden is on you to prove that an affirmative defense applies to you at a hearing or trial.

    Usually, if you are committing a non-violent crime in your home, a police officer must go to a Judge and get a warrant to enter your home to arrest you or conduct a search.

    The 4th DCA has just effectively ruled that if you are seen with a gun, an “exigent circumstance” exists that allows an officer to enter your home without a warrant.

    • schermerhorn says:

      You have an “affirmative defense” that you were justified in committing that crime in your home, or under your valid concealed carry license, or while hunting, etc…
      The burden is on you to prove that an affirmative defense applies to you at a hearing or trial.

      So basically what your saying is that the person is in effect guilty and then must prove their innocence. I believe that the court system works that you are not there to prove your innocence but it is the states job to prove your guilt.

      I believe this is just another way for the government to hinder law abiding citizens instead of detaining those who would actually do harm.

      • Sean Caranna says:

        Exactly, making something an “affirmative defense” rather than an “element of the crime” shifts the burden of proof to the defendant. It makes you guilty until proven innocent.

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