|I. OBSTRUCTING OR OPPOSING WITHOUT VIOLENCE
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).
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
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
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
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
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:
Perry v. State, 593 So.2d 1165 (Fla. 1st DCA 1992).
- 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.
K.R.R. v. State, 629 So.2d 1068 (Fla. 2d DCA 1994).
- 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).
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:
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
- 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).