MISDEMEANOR OFFENSES UPDATE - 1995

I. OBSTRUCTING OR OPPOSING WITHOUT VIOLENCE

A. Interference with a Terry stop.

1. Flight or failure to remain.

a. The defendant was charged with resisting arrest without violence. The officer attempted to stop the defendant from fleeing him. The officer saw the defendant cross a vacant filed. While doing so the officer saw the defendant make a "furtive movement as if to hide something behind his back and ran away." The appeals court concluded that since the officer did not have grounds to stop the defendant, he could not be convicted of resisting the officer without violence. The officer was not engaged in the lawful execution of a legal duty when trying to stop the defendant. Breedlove v. State, 605 So.2d 589 (Fla. 2d DCA 1992).

b. Flight standing alone will not support a charge of obstructing a police officer in the lawful execution of a legal duty. F.E.C. v. State, 559 So.2d 413 (Fla. 2d DCA 1990); Nelson v. State, 543 So.2d 1308 (Fla. 2d DCA 1989).

c. The defendant's flight, along with his apparent knowledge that he is the target of a lawful arrest by a police officer, constitutes "obstruction" in the execution of a legal duty when an officer is attempting to place him under arrest. Perry v. State, 593 So.2d 1165 (Fla. 1st DCA 1992).

d. If a defendant learns, knows, or understands that an officer desires to detain him, and then flees or takes other intentional action to prevent his lawful detention, he may be guilty of obstructing or opposing such officer in violation of 843.02. M.C. v. State, 450 So.2d 336 (Fla. 5th DCA 1984).

e. Physically restraining someone seeking to escape from a legal Terry stop is the "lawful execution of [a] legal duty" within the meaning of 843.02. Jacobson v. State, 476 So.2d 1282 (Fla. 1985). This statute does not require the officer to actually be engage in the process of arresting a defendant, rather a Terry stop will suffice. Id.

B. Response to questions upon arrest.

  • 1. The defendant refused to give his name to the officer prior to being arrested. He was charged with resisting arrest without violence in violation of 843.02. The appeals court concluded that this conduct does not support a finding of resisting arrest without violence. J.R. v. State, 627 So.2d 126 (Fla. 5th DCA 1993).

    2. The defendant was charged with resisting arrest without violence by obstructing or opposing an officer by giving false information in the way of a fictitious name. The defendant was stopped on a motor scooter without mirrors or a helmet. The defendant had no ID and gave the officer a false name. The scooter was reported stolen. The officer placed the defendant under arrest and read him Miranda warning. It was not until this occurred that the defendant voluntarily gave the officer his correct name. The appellate court concluded that the defendant violated 843.02 since the defendant was already under arrest for the theft of the motor scooter. In the Interest of J.H., 559 So.2d 702 (Fla. 4th DCA 1990).

    3. A defendant's failure to cooperate with the police by refusing to answer questions or identify himself by name cannot itself be criminal conduct. This failure to refuse is protected by the Fourth and Fifth Amendments. Robinson v. State, 550 So.2d 1186 (Fla. 5th DCA 1989).

    4. The defendant gave the officer a false name and several social security numbers. The officer placed the defendant under arrest, because he considered the false information an impediment to his investigation. The defendant did not recant. Instead, the defendant immediately after his arrest for resisting without violence, ran off. The appeals court recognized that an arrest under 843.02 could be based on the giving of such false information and held that the arrest was valid. Barkley v. State, 522 So.2d 431 (Fla. 1st DCA 1988).

    5. The defendant, at the time of his arrest for Grand Theft Auto, lied about his name and date of birth to the officer. He was booked under the false name at the Pinellas County Jail. The prosecution relied on the false name and filed an information against the defendant. Ultimately, the authorities cleared up the confusion created by the defendant's false information. The defendant was charged with obstructing or opposing an officer without violence in violation of 843.02. The appeals court concluded that the defendant's conduct under these circumstances hindered the officer's performance of his duties. Caines v. State, 500 So.2d 728 (Fla. 2d DCA 1987).

    6. The defendant was stopped for riding a bicycle without a headlight, gave a false name which the officer ran through the computer. Immediately thereafter the defendant reasoned that the false identification had not interfered with the officer's performance of his duties "other than causing a relatively insignificant loss of time." In so doing, the court reversed the defendants conviction for resisting an officer without violence to his person. C.T. v. State, 481 So.2d 9 (Fla. 1st DCA 1985).

C. Obstruction charges based on the use of language.

  • 1. The defendant was ordered to leave while the police were investigating the defendant's friend. The defendant yelled at the officer with his fists clenched. He stated, "I'm a Vietnam veteran and you don't know what I know." He also said, "When I get out, f--- the judge, f--- the jury. I'll just blow your head off." The appeals court concluded that this speech was not constitutionally protected. Singer v. State, 647 So.2d 1021 (Fla. 4th DCA 1994).

    2. The defendant refused to answer any of the officer's questions. The defendant then advised his friend not to respond to the officer's inquires. The officer instructed the defendant to keep quite, but he continued to advise his friend not to speak. The officer grew frustrated that her questions went unanswered, and again advised the defendant not to interfere with her investigation. There was no evidence that the defendant made any physical overtures toward the officers, nor was there any evidence that the defendant was verbally abusive towards the officer or that he verbally threatened them. The appeals court concluded that this conduct did not sufficiently impede the deputy so as to constitute a violation of 843.02. In the Interest of R.S. v. State, 531 So.2d 1026 (Fla. 1st DCA 1988).

    3. A juvenile, by waiving and shouting, alerted perspective drug purchasers that the police were selling drugs in the area. The defendant's conduct was protected free speech. It was not calculated to incite others to violent action against the police. Nor did it have the effect of assisting those already engaged in recognized criminal activity. S.D. v. State, 627 So.2d 1261 (Fla. 3d DCA 1993).

D. Nature of the duty being performed by the officer.

  • 1. Lawfulness of arrest.
    • a. While the illegality of an underlying arrest is not a defense to resisting an arrest with force or violence, the common law rule still exists that a person may lawfully resist an illegal arrest without using any force or violence. K.Y.E. v. State, 557 So.2d 956 Fla. 1st DCA 1990).

      b. Double jeopardy does not bar prosecution for resisting an officer without violence [843.02] and fleeing or attempting to elude a police officer [316.1935]. Saldana v. State, 634 So.2d 201 (Fla. 3d DCA 1994).

      c. The legality of an arrest is an essential element of the charge of resisting arrest without violence, and the prosecution has the burden of establishing this element. See, DA v. State, 636 So.2d 863 (Fla. 3d DCA 1994); Smith v. State, 546 So.2d 459 (Fla. 4th DCA 1989); Lee v. State, 369 So.2d 395 (Fla. 3d DCA 1979).

      d. Where an officer has no basis to detain an individual, the individual's action in ignoring an officer's command to stop cannot constitute resisting arrest. F.B. v. State, 605 So.2d 578 (Fla. 3d DCA 1992).

      e. To sustain a conviction under section 843.02, the state must prove that:

      • i. The officer was engaged in the lawful execution of a legal duty; and

        ii. the action by the defendant constituted obstruction or resistance of the lawful duty.

Perry v. State, 593 So.2d 1165 (Fla. 1st DCA 1992).

      • f. Proof that the officer was "in the lawful execution of [a] legal duty" is established by proof of either probable cause or a valid warrant. A stipulation of probable cause to arrest the defendant will suffice. Jones v. State, 640 So.2d 204 (Fla. 4th DCA 1994).

      2. Execution of the warrant.

      • a. The failure of the state to introduce into evidence the actual pickup order used by the police to arrest the defendant precludes the defendant's conviction of resisting arrest without violence. The officer's testimony about a valid pickup order is insufficient. D.A. v. State, 636 So.2d 863 (Fla.3d DCA 1994).

        b. For an arrest based upon an active capias. The state must introduce evidence that the capias was legally valid at the time of the arrest. If no such proof is presented, the state cannot be said to have established every element of the crime for which the defendant was charged.. Smith v. State, 546 So.2d 459 (Fla. 1st DCA 1989).

        c. The officer arrested the defendant based upon a conditional threat of the defendant in a sworn statement to do harm to his ex-girlfriend. The threat did not constitute a valid assault. Therefore, since no overt act was alleged there was insufficient probable cause to sustain a conviction for Resisting Arrest Without Violence. Butler v. State, 632 So.2d 684 (Fla. 5th DCA 1994).

      3. Arrest without a warrant.

    E. Instructions

    • 1. It is appropriate for the trial court to instruct the jury that the official position of the alleged victim is a law enforcement officer. However, the trial judge must refrain from advising the jury that the specific victims are or were acting as officers within the meaning of the law. To do otherwise would in effect direct the jury to find as a matter of law an essential element of the charge. Starks v. State, 627 So.2d 1194 (Fla. 3d DCA 1993).

      The instruction to the jury that the victims were engaged in the "lawful execution" of their legal duties was incorrect. The instruction should state, in generic terms, an appropriate definition of a "lawful execution of a legal duty," and should not have referred to the defendant. Id.

      2. It is error for the trial court to instruct the jury that the police were in lawful execution of a legal duty at the time the alleged offense took place. Wimbley v. State, 567 So.2d 560 (Fla. 4th DCA 1990).

      3. It is error for the trial court not to instruct the jury that the defendant had the right to resist illegal arrest without violence. The jury has the right to determine whether the defendant had been illegally arrested (without probable cause). Jones v. State, 584 So.2d 190 Fla. 1st DCA 1991).

      4. Where the state and the defendant stipulate that the officer was engaged in the lawful execution of a legal duty, the court did not err when it instructed the jury accordingly. Jones v. State, 640 So.2d 204 (Fla. 4th DCA 1994).

      5. A defendant must object to the court's instruction on Resisting Arrest without Violence in order to preserve any issue relating to the instruction for appellate review. Jones v. State, 640 So.2d 204 (Fla. 4th DCA 1994).

      6. The standard jury instruction on Resisting Arrest without Violence does not take issue of the lawfulness of the arrest from the jury. However, in those cases where the defendant maintains that the arrest was unlawful and requests that the jury be instructed on that defense, an instruction should be given to insure that the jury understands that it must decide the issue. Although no such instruction was requested in this case, the addition of the word "lawful" to the standard instruction served to clarify that the legality of the arrest was an issue for the jury and certainly did not affect the defense's ability to argue that the arrest was unlawful. State v. Anderson, 639 So.2d 609 (Fla. 1994), quashes, Scott v. State, 594 So.2d 832 (Fla. 4th DCA 1992).

II. LOITERING AND PROWLING

  • A. Must consist of unsusual behavior which creates a justifiable alarm or immediate concern for the safety of persons or property. Mere suspicion is not sufficient.
    • 1. Ten minutes after receiving a report of an auto theft in progress, the police saw the defendant and his companion walking on the railroad tracks at 12:30 a.m. about 300 yards from the alleged location of the offense. There were no residences nearby, only businesses. The officer testified that based on his experience, people are not normally seen walking in the area after midnight in the area, and that there was a recognized curfew that the defendant was violating. The officer charged the defendant with loitering and prowling. The appeals court found these facts to be insufficient to support a conviction for loitering and prowling.

      The appeals court held that a conviction for loitering and prowling requires proof that:

      • 1. The defendant was loitering or prowling in a place, at a time or in a manner unusual for a law-biding individual under

        2. circumstance that warrant a justifiable and reasonable alarm or concern for the safety of persons or property in the vicinity. [This behavior must imminently threaten the safety of persons or property.

K.R.R. v. State, 629 So.2d 1068 (Fla. 2d DCA 1994).

  • B. Offense must have occurred in the presence of the officer.
    • 1. Since loitering and prowling is a misdemeanor offense, all the elements of the offense must occur in the presence of the arresting officer to constitute a legal arrest. G.E.C. v. State, 586 So.2d 1388 (Fla. 5th DCA 1991).

      2. The officer saw two men jump a high wall and start walking towards the street. He did not see either man carrying anything prior to stopping them. These facts do not support a finding that the officer had probable cause to arrest the defendant for loitering and prowling. Freeman v. State, 617 So.2d 432 (Fla. 4th DCA 1993).

    C. Loitering for specific purposes or in violation of a sign.

III. WEAPONS

  • A. Location of weapon.
    • 1. The defendant carried a rifle and shotgun that were both partially enclosed in a professionally made gun case attached to the back of the truck's seat cover. The but ends of the guns were visible when the driver's door was opened. There was an eight inch distance between the seat and the driver's door. The defendant was charged with carrying a concealed weapon in violation of 790.01. The appeals court noted that these cases rely on whether the weapon is "readily accessible for immediate use", and are intensely "fact specific." In so doing, the court concluded that given the length of the weapons and their position behind the driver's seat, the defendant could only retrieve the guns by opening the door and awkwardly reaching behind the seat. It would have probably required the defendant to actually exit the truck to retrieve the guns. Accordingly, the court ruled as a matter of law that the defendant's possession of the weapons was not illegal. Boswink v. State, 636 So.2d 584 (Fla. 2d DCA 1994).

      2. The defendant was stopped by the police. She had a handgun in the front seat beside her and she made no conscious effort to conceal it with her body. The grip and hammer were sticking up 6 inches above the level of the seat, and the police officer immediately recognized it as a handgun. The police did not initially see the gun when they first stopped the car. To be concealed a firearm need not be totally hidden from view or absolutely invisible to other persons. The question turns on whether an individual standing beside a vehicle in which a person with a firearm is seated would, by ordinary observation, know the object to be firearm. The appeals court concluded the gun was not concealed. Carpenter v. State, 593 So.2d 606 (Fla. 5th DCA 1992).

      3. Before being stopped by the police, the defendant ducked down in his seat two or three times. Upon making the stop, the officer looked inside the passenger seat and noticed the butt of a handgun protruding from the end of the seat. The officer placed the defendant under arrest for carrying a concealed firearm. The appeals court noted a two-fold test for a concealed weapon:

        • 1. It must be on or about the person; and

          2. Hidden from the ordinary sight of another person.

      The appeals court concluded that the defendant failed to present evidence on its sworn motion to dismiss that the weapon was situated so that it was within the ordinary sight of another person. State v. Pollock, 600 So.2d 1313 (Fla. 3d DCA 1992).

      4. The defendant was stopped by the police. A gun was found under the driver's seat, and ammunition for the gun and a fully loaded clip were found under the passenger's seat. The police charged the defendant with carrying a concealed weapon in violation of 790.01(2). The Florida Supreme Court concluded that given the location and accessibility of the firearm and ammunition, the firearm was "readily accessible for immediate use" and was concealed under the terms of the statute. Ridley v. State, 621 So.2d 409 (Fla. 1993).

      5. An unloaded firearm located under the passenger's seat of a vehicle is readily accessible for immediate use when ammunition for that firearm is lying in open view on the passenger's seat. Under these facts a person may be convicted of carrying a concealed firearm. Ashley v. State, 619 So.2d 294 (Fla. 1993).

      6. After being stopped, the police located a firearm in the ammunition for the weapon was discovered in the car. On these facts alone, the defendant was charged with carrying a concealed firearm. The Florida Supreme Court held that a firearm is not considered readily accessible for immediate use within the meaning 790.01(2) and 790.25(5) when no ammunition is found in the vehicle. However, had ammunition been found in the vehicle whether the firearm was "readily accessible for immediate use" would have to be determined factually on a case-by-case basis. Ashley v. State, 619 So.2d 294 (Fla. 1993).

      7. The defendant was properly convicted of carrying a concealed firearm when he entered a mall wearing a 9" x 12" zippered leather pouch which contained a firearm. Dima v. State, 621 So.2d 480 (Fla. 4th DCA 1993).

IV. DISORDERLY CONDUCT

  • A. Language as the basis for charge
    • The defendant sang "Fuck the Police." Her singing could be heard across the street where adults and children were gathering. The record was devoid of any evidence that the singing evoked a response tending to inflict injury or incite an immediate breach of the peace. While the appellate court notes the singing to be annoying, it did not breach the peace. Furthermore, the defendant's conduct fell within the protections of the First Amendment. K.Y.E. v. State, 557 So.2d 956 (Fla. 1st DCA 1990).

    B. Jury Instructions

    • The trial court did not err in giving the standard jury instruction on disorderly conduct, even though the defendant contended that disorderly conduct for verbal conduct can only arise when words used are fighting words or false words used to report a physical hazard likely to cause harm. O'Hara v. State, 642 So.2d 592 (Fla. 4th DCA 1994).

V. TRESPASS.

    • The defendant was deemed to have violated 228.091(1) of trespassing on public school grounds, and in so doing the appeals court held the statute to be constitutional. J.H. v. State, 625 So.2d 883 (Fla. 1st DCA 1993).

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