Gun tucked between seat and console – is it legal???
copyright 2021 by jon gutmacher and updated 11/2022
As a general rule – it’s not a good idea to have a firearm tucked between the seat and console in Florida. It could either be “open carry” or “concealed carry” depending on the facts — and it’s usually a jury question. If you have a valid CWL and it can’t be seen from outside the vehicle — it will normally be considered “concealed”, but case law indicates it still might be a question of fact for a jury. If you don’t have a CWL — it’s a real bad idea unless it is also “securely encased”. Of course, if it’s securely encased it doesn’t matter where it is as long as it is not on your person. But, here’s some caselaw to help you understand:
Anyway, to expand on this a bit, I found a case I really liked on the question of concealed firearms in a vehicle. The case is A-Martinez v. State, 46 Fla. L.Weekly D.2404 (Fla. 3DCA 11/10/2021). The facts in Martinez are he’s lawfully stopped for an inoperative taillight violation, and volunteers that he has a firearm in the car. The investigating officer asks him to step out of the vehicle, and when he does the firearm is visible, wedged (no holster) between the driver seat and the console. Typical place. Martinez is asked if he has a CWL, and answers no. He’s arrested for CCF (carrying concealed firearm). Martinez moves to dismiss, contending the gun is not hidden, and thus “open” – which would be a misdemeanor vs. the felony. The trial judge denies the motion, and Martinez pleads guilty, reserving his right to appeal. The appellate court affirms. But, why???
Well, the appellate court says the issue was entirely a question of fact – a “jury” issue of whether the gun was “concealed” or not, and the court suggests that pursuant to Ensor v. State, 403 So.2d 349 (Fla. 1981), it would likely have gone along with “concealed” as the testimony was that the firearm was hidden from view until Martinez exited the vehicle, saying:
“In all instances, common sense must prevail. The critical question turns on whether an individual, standing . . . beside a vehicle in which a person with a firearm is seated, may by ordinary observation know the questioned object to be a firearm”.
So, the appellate court distinguished cases where the butt of a firearm was seen (or could have been seen had the officer been in an observable position), or some other portion of a firearm could have been, or was identified without the driver (or possessor) exiting. And this legal standard also applies at nighttime if the officer had a flashlight, or if not, having a flashlight could or did illuminate the firearm or a portion of the firearm that made it recognizable as a gun.
In summing it up, I keep wondering why the officers didn’t just charge it as open carry from the jumpstart since there was nothing else involved in this traffic stop? The driver was cooperative, and let them know about the gun ahead of time. Chances would normally be if he had no record that the State would plea it down to an “open carry” misdemeanor, anyway. Likewise, why would Martinez ever do a guilty plea on the hope that an appellate court would see it as a pure question of law vs. a question of fact – the latter always being a jury issue. But, that wasn’t my call, and just something I thought I’d throw in for all my experienced readers who I know are already thinking the same thing. So with that, HAPPY HOLIDAYS, have a Joyous Christmas, and Wonderful New Year! .
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