137 So.3d 535 (Fla.App. 4 Dist. 2014), 4D12-2420, R.R. v. State

Docket Nº4D12-2420
Citation137 So.3d 535, 39 Fla. L. Weekly D 728
Opinion JudgeConner, J.
Party NameR.R., a child, Appellant, v. STATE OF FLORIDA, Appellee
AttorneyCarey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
Judge PanelCONNER, J. TAYLOR, J., concurs. KLINGENSMITH, J., concurs in part and dissents in part with opinion. Taylor, J., concurs. Klingensmith, J., concurs in part and dissents in part with opinion. CONCUR BY: KLINGENSMITH (In Part) Klingensmith, J., concurring in part and dissenting in part.
Case DateApril 09, 2014
CourtFlorida Court of Appeals, Fourth District

Page 535

137 So.3d 535 (Fla.App. 4 Dist. 2014)

39 Fla. L. Weekly D 728

R.R., a child, Appellant,

v.

STATE OF FLORIDA, Appellee

No. 4D12-2420

Florida Court of Appeal, Fourth District

April 9, 2014

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Moses Baker, Jr., Judge; L.T. Case No. 2012CJ001695ASB.

Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J. TAYLOR, J., concurs. KLINGENSMITH, J., concurs in part and dissents in part with opinion.

OPINION

Page 536

Conner, J.

R.R. appeals the order adjudicating him guilty of resisting an officer without violence, contending that his motion for judgment of dismissal at trial should have been granted because the arresting officer was not performing a legal duty when R.R. continued to run, even after the officer commanded him to stop. We affirm the adjudication of delinquency.

On December 29, 2011 around 3:00 p.m., a Miami police officer on " Grinch patrol" (working to deter crime around the holidays) observed R.R. walking with another juvenile male in a parking lot between a McDonald's and a Payless Shoe Store. The officer saw R.R. and his companion look into one vehicle, then into a second vehicle. The officer began to drive toward the two juveniles and intercepted them as they were walking toward his vehicle. In

Page 537

anticipation that the juveniles were going to commit or attempt to commit a burglary on one of the vehicles, the officer turned on his lights, exited his vehicle, made eye contact, and identified himself by stating, " police, I need you guys to come over here." Instead, R.R. and his companion ran away. The officer yelled " stop, police" and chased the juveniles in his vehicle. Eventually, the two juveniles split up, and the officer followed R.R. until he was able to apprehend R.R.

R.R. was charged with resisting an officer without violence, pursuant to section 843.02, Florida Statutes (2011). An adjudicatory hearing was conducted by the circuit court in Miami-Dade County. At the close of the State's case, R.R. moved for a judgment of dismissal. Defense counsel argued that walking through a parking lot and simply looking into two car windows, without touching the car doors, did not give rise to a reasonable suspicion that R.R. had committed a crime. Without reasonable suspicion, the officer was therefore not engaged in the lawful execution of a legal duty when he ordered R.R. to stop. Defense counsel also argued that flight alone is insufficient to form the basis for resisting an officer without violence.

The circuit court reserved ruling on the motion for judgment of dismissal, but implicitly denied the motion when it subsequently adjudicated R.R. delinquent as charged. Jurisdiction over the case was then transferred to Palm Beach County, where R.R. resided, for disposition. Subsequently, the circuit court withheld adjudication of delinquency and placed R.R. on probation.

R.R. argues on appeal that his motion for judgment of dismissal should have been granted. The standard of review is de novo. R.H. v. State, 56 So.3d 156, 157 (Fla. 4th DCA 2011).

To prove the crime of resisting an officer without violence, " the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant's action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty." C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla. 2009). " An officer's command to stop is a lawful execution of a legal duty if there is reasonable suspicion to support the stop." Palmer v. State, 112 So.3d 606, 607 (Fla. 4th DCA 2013) (citing C.E.L., 24 So.3d at 1186). " Whether an officer's suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the stop." State v. Gonzalez, 840 So.2d 401, 403 (Fla. 4th DCA 2003) (quoting Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001)). " For reasonable suspicion justifying a detention to exist, 'the detaining officer[] must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Tillman v. State, 934 So.2d 1263, 1273 (Fla. 2006) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). The officer " must be able to articulate something more than an 'inchoate and unparticularized suspicion or " hunch." '" United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

Here, R.R. fled before the officer commanded him to stop, but after the officer initially drove toward the juveniles to intercept them, stopped his patrol car, turned on his overhead lights...

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