It’s been estimated by the Pew Research Center that some 37 percent of Americans – or more than one-third – own a firearm or have a firearm in their home owned by someone else.
While the laws governing their use, sale and storage have become more restricted over the years, the fact remains these weapons are legal. What’s more, our Fort Lauderdale criminal defense attorneys know that evidence of gun possession – absent a clear connection to a crime – is not admissible in criminal court to be used against the defendant.
This issue recently arose before Florida’s Second District Court of Appeal in Tolbert v. State, where justices cited the 2011 Florida Supreme Court decision Agatheas v. State as a guide.
In Agatheas, a man was arrested on a murder charge five years after the alleged crime. At the time of his arrest, he was in possession of a 45-caliber revolver. Prosecutors conceded the gun had no connection whatsoever to the crime. And yet, it was allowed into evidence, despite a motion to suppress. This was challenged, but the appellate court affirmed. The Florida Supreme Court, though, reversed, finding more legal grounding for the opposing 5th DCA ruling in Moore v. State in 2009. In the end, the court clearly stated that in order for evidence of a firearm to be admissible as relevant, the state has to show there is a sufficient connection between the weapon and the crime.
This brings us to Tolbert.
Tolbert was arrested and later convicted on charges of trafficking in cocaine by possession. We don’t know the exact facts surrounding the charge. However, we do know that police secured a warrant to search the defendant’s home. No one was present at the time the search was executed. Inside the home, officers discovered cocaine in a trash bag, as well as mail addressed to the defendant and also a handgun.
The court allowed evidence of the gun to be used against the defendant at trial.
Upon appeal, the court reversed the conviction on these grounds and remanded a case for a new trial. The fact was, the case hadn’t presented any evidence that connected the handgun found at the home to the alleged drug trafficking. Therefore, the evidence was irrelevant.
The state tried to argue the handgun was relevant because everything found inside the trash can with the cocaine would be relevant in helping the jury determine who put the drugs in the trash can. However, there was never any evidence the gun belonged to the defendant. There was no fingerprint evidence, no registration records, no purchase records and no witnesses who testified to having seen the defendant with a gun. Absent any of this, the fact that the gun was there didn’t prove it belonged to the defendant, much less that it was used in connection with the crime alleged.
This kind of ruling would be appropriate even if there is evidence that any firearm had been used in connection with the crime charged. If the specific firearm found isn’t linked, it can’t be introduced.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Tolbert v. State, June 18, 2014, Florida’s Second District Court of Appeal
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Violation of Florida Accident Report Privilege Sends DUI Case Back to Trial, May 15, 2014, Fort Lauderdale Drug Defense Lawyer Blog