by David Kim

The United States Court of Appeals for the Eleventh Circuit held that concealed firearm possession alone does not establish reasonable suspicion under Florida’s concealed-carry statute as amended in 2015. The amendment made non-licensure an element of the offense, eliminating the premise of the Eleventh Circuit’s earlier contrary approach. The Court also held that the totality of the circumstances failed to justify the detention and that suppression was warranted.

Background

In October 2022, Miami-Dade detectives Luis Escarra Jr. and Rashad Young surveilled a house in an area known for drug sales and violent crime. The house was linked to a narcotics report and had been the site of a fatal drive-by shooting about two weeks earlier. During 40 to 45 minutes of surveillance, the detectives saw Olson Joseph receive a haircut outside and enter the house. The detectives observed no drug transactions involving Joseph, whose visit lacked the rapid entries and departures associated with drug sales.

As Joseph walked away with his hands in his sweatshirt pocket, both detectives observed part of a firearm protruding from it. They blocked his path with their vehicles, approached with firearms in hand, and ordered him to raise his hands. Joseph complied. Escarra removed the gun and handcuffed him. Only afterward did a records check establish that Joseph had a felony record and lacked a concealed-carry permit.

The U.S. District Court for the Southern District of Florida denied Joseph’s constitutional challenge to his indictment under 18 U.S.C. § 922(g)(1). It also denied suppression of the gun, concluding that his detention was an investigative stop justified by firearm possession alone or, alternatively, by possession combined with the location’s criminal associations. Joseph entered a conditional guilty plea preserving his suppression appeal and received 46 months’ imprisonment. On appeal, he challenged the justification for his detention.

Analysis

Concealed Firearm Possession
and Reasonable Suspicion

The Court began its Fourth Amendment analysis by addressing arrests requiring probable cause and investigative stops requiring reasonable suspicion when they begin. United States v. Espinosa-Guerra, 805 F.2d 1502 (11th Cir. 1986); Terry v. Ohio, 392 U.S. 1 (1968). It declined to determine whether Joseph was arrested because even an investigative stop was unjustified. The Court stated that reasonable suspicion requires a “particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266 (2002). Although less demanding than probable cause or a preponderance of evidence, the standard requires more than an unsupported hunch. Arvizu; United States v. Sokolow, 490 U.S. 1 (1989).

The Court then examined Florida’s statutory amendment. Under the earlier law, licensure was an affirmative defense, so concealed possession supported reasonable suspicion. United States v. Lewis, 674 F.3d 1298 (11th Cir. 2012). The Court explained that making non-licensure an element of Fla. Stat. § 790.01(2) in 2015 rendered concealed carry presumptively lawful and displaced that reasoning. The Court drew an analogy to Delaware v. Prouse, 440 U.S. 648 (1979), which involved stops to check drivers’ licenses and registrations without individualized suspicion of a traffic violation. The Supreme Court’s treatment of those stops as suspicionless indicated that driving alone did not suggest that the driver lacked a license. The Court applied that reasoning to concealed carry, i.e., presumptively licensed firearm possession does not, by itself, indicate that the carrier is unlicensed.

The Court rejected the Government’s reliance on firearms’ greater danger and distinguished United States v. Rodriguez, 739 F.3d 481 (10th Cir. 2013), which involved presumptively unlawful concealed carry. The Court observed that United States v. Brown, 925 F.3d 1150 (9th Cir. 2019), applied the licensing analogy under a regime resembling Florida’s amended law.

Because concealed carry was presumptively lawful, permitting stops based on possession alone would deny lawful gun owners Fourth Amendment protection, the Court reasoned. Similarly, other courts rejected detention based solely on presumptively lawful firearm possession. See, e.g., United States v. Black, 707 F.3d 531 (4th Cir. 2013); Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128 (6th Cir. 2015); Kilburn v. State, 297 So. 3d 671 (Fla. 1st Dist. Ct. App. 2020); Slydell v. State, 240 So. 3d 134 (Fla. 2d Dist. Ct. App. 2018).

The Court limited its holding to § 790.01(2) under the 2015–2023 law governing Joseph’s stop. Florida amended the statute again in 2023 to permit unlicensed concealed carry. See Fla. Stat. § 790.01(1)(b). The Court opined that firearm possession might support suspicion of other offenses, including violations involving machine guns or school property.

Totality of the Circumstances

The Court next examined the combined circumstances. Lawful conduct, including firearm possession, can contribute to reasonable suspicion. United States v. Gordon, 231 F.3d 750 (11th Cir. 2000). But Joseph’s presence in a high-crime neighborhood, the house’s criminal associations, and his accessible gun did not establish an individualized connection to wrongdoing, according to the Court. The detectives observed no drug transactions involving Joseph and knew of no connection between him and the earlier shooting. The Court held that the totality of the circumstances did not justify Joseph’s detention and that suppression was warranted.

The Court distinguished United States v. Hunter, 291 F.3d 1302 (11th Cir. 2002), where immediate proximity to ongoing illegal gambling, together with flight, supported reasonable suspicion. Presence beside a crime in progress could connect a suspect to that activity, the Court observed. But Joseph’s presence where crimes had previously occurred provided much weaker evidence of participation. See Arvizu. The Court also distinguished United States v. Powell, 222 F.3d 913 (11th Cir. 2000), which involved unusual conduct suggesting a drug transaction. Under Illinois v. Wardlow, 528 U.S. 119 (2000), presence in a high-crime area alone does not establish individualized suspicion. Wardlow involved the additional circumstance of flight from police. Joseph’s visit, haircut, and departure with a presumptively lawful firearm instead amounted to “going about one’s business” and did not justify detention, the Court explained.

Suppression

The Court explained that a Fourth Amendment violation does not automatically require exclusion. Suppression must produce “appreciable deterrence.” Herring v. United States, 555 U.S. 135 (2009) (quoting United States v. Leon, 468 U.S. 897 (1984)). No established exception applied, and exclusion would discourage similar seizures of presumptively law-abiding gun owners, the Court explained. Thus, the Court concluded that suppression was appropriate.

Conclusion

Accordingly, the Court affirmed the denial of Joseph’s Second Amendment dismissal motion, vacated his conviction, reversed the partial denial of suppression, and remanded for further proceedings consistent with its opinion. See: United States v. Joseph, 2026 U.S. App. LEXIS 27723 (11th Cir. 2026).  

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