892 So.2d 522 (Fla.App. 3 Dist. 2004), 3D04-844, D.T.B. v. State

Docket Nº3D04-844.
Citation892 So.2d 522, 30 Fla. L. Weekly D 32
Opinion JudgeThe opinion of the court was delivered by: Shevin, Judge.
Party NameD.T.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
AttorneyBennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
Case DateDecember 22, 2004
CourtFlorida Court of Appeals, Third District

Page 522

892 So.2d 522 (Fla.App. 3 Dist. 2004)

30 Fla. L. Weekly D 32

D.T.B., a juvenile, Appellant,

v.

The STATE of Florida, Appellee.

No. 3D04-844.

Florida Court of Appeal, Third District

December 22, 2004

Page 523

Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.

Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.

Before SHEVIN, RAMIREZ and WELLS, JJ.

SHEVIN, Judge.

D.T.B., a juvenile, appeals an adjudication of delinquency for obstructing/resisting arrest without violence. § 843.02, Fla. Stat. (2004). We reverse.

D.T.B. was charged with obstructing/resisting arrest based on the following incident. On December 13, 2003, in the afternoon, Officers Borrego and Avila approached an apartment complex in a marked police car. The officers wanted to conduct a "voluntary field interview" with D.T.B. to fill out a field interview card. Both officers testified that this is a consensual, citizen encounter. The officers saw D.T.B. standing by a tree. The officers testified that they had observed drug transactions by that tree before. However, they observed no such transactions on this occasion, nor did they suspect any. 1 The officers did not suspect that D.T.B. was involved in any criminal activity on this occasion. When the police pulled up to the area, D.T.B. ran away. The officers yelled, "Stop, Police." D.T.B. continued to run. The officers caught D.T.B. and arrested him.

D.T.B. was charged with obstructing/resisting arrest without violence under section 843.02. The defense filed a motion for judgment of acquittal, asserting that Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), did not mandate an adjudication in this case. The state argued that under Wardlow D.T.B.'s flight constituted resisting an officer, and satisfied the elements of the offense under section 843.02. The court denied the motion. D.T.B. was adjudicated delinquent.

The question we are asked to resolve in this appeal is whether the holding in Wardlow, that flight from police in a high crime area creates reasonable suspicion such that the police can stop a citizen without violating the Fourth Amendment to the United States Constitution, transforms the flight into the crime of resisting arrest, sufficient to satisfy the elements of a conviction under section 824.02. We hold that it does not, and reject the state's reading of Wardlow.

In Wardlow, the defendant "fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. Two officers caught up with [defendant],

Page 524

stopped him and conducted a protective patdown for weapons. Discovering a .38 caliber handgun, the officers arrested [the defendant]." 528 U.S. at 121, 120 S.Ct. 673. The question before the Court was "whether the initial stop [of the defendant] was supported by reasonable suspicion." Id. at 124 n. 2, 120 S.Ct. 673. Noting that whether the stop occurs in a high crime area is a relevant factor to be considered in a Terry 2 analysis, the Supreme Court held that the police did not violate Wardlow's fourth amendment rights when they stopped him when he fled in a high crime area. Id.

The state now argues that, under Wardlow, D.T.B.'s flight in a high crime area gave the police reasonable suspicion to stop him, and, having the right to stop D.T.B., the flight was sufficient to prove that D.T.B. had committed the offense of resisting arrest under section 824.02. We cannot adopt such an expansive reading of Wardlow. Wardlow did not criminalize running from the police. Wardlow only held that running from the police in a high crime area gave the police reasonable suspicion to allow "officers confronted with such flight to stop the fugitive and investigate further." Wardlow, 528 U.S. at 125, 120 S.Ct. 673. Under Wardlow, this creates a justification for the police to conduct nothing more than a Terry stop, a "minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go his way." Id. at 126, 120 S.Ct. 673.

This language leads us to conclude that the Wardlow Court did not intend for flight to be used as a justification for arrest and subsequent prosecution. We find that it was improper for flight to be used as the vehicle for charging D.T.B. with resisting or obstruction. Here, as the Wardlow Court envisioned, if "the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go his way." Wardlow, 528 U.S. at 126, 120 S.Ct. 673. However, that was not done. The motion for judgment of acquittal should have been granted.

In some cases, flight can support a conviction under 843.02. However, to succeed in those cases the state must prove "that (1) the officer had an articulable well-founded suspicion of criminal activity that justifies the officer's detention of the defendant, and (2) the defendant fled with knowledge that the officer intended to detain him or her." V.L. v. State, 790 So.2d 1140, 1142-43 (Fla. 5th DCA 2001). Nothing in the transcript before us demonstrates that the officers who approached...

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11 practice notes
  • 933 So.2d 587 (Fla.App. 3 Dist. 2006), 3D03-2819, Polite v. State
    • United States
    • Florida Florida Court of Appeals Third District
    • June 14, 2006
    ...such a requirement must be imposed because the forbidden conduct would not otherwise be necessarily improper. See D.T.B. v. State, 892 So.2d 522, 524 (Fla. 3d DCA 2004); Cooper, 742 So.2d at 855; Elliot v. State, 704 So.2d 606 (Fla. 4th DCA 1997); see also Chicone v. State, 684 So.2......
  • 137 So.3d 535 (Fla.App. 4 Dist. 2014), 4D12-2420, R.R. v. State
    • United States
    • Florida Florida Court of Appeals Fourth District
    • April 9, 2014
    ...en banc decision in C.E.L. v. State, 995 So.2d 558 (Fla. 2d DCA 2008), and the decision of the Third District in D.T.B. v. State, 892 So.2d 522 (Fla. 3d DCA 2004), on the issue of whether section 843.02 requires a reasonable suspicion of criminal activity to exist before an individual flees......
  • 967 So.2d 1128 (Fla.App. 2 Dist. 2007), 2D06-3974, J.D.H. v. State
    • United States
    • Florida Florida Court of Appeals Second District
    • November 16, 2007
    ...rising to the level of probable cause, the individual must be allowed to go his way." Id. at 126, 120 S.Ct. 673. D.T.B. v. State, 892 So.2d 522, 524 (Fla. 3d DCA 2004). Thus, the Third District rejected the State's position that D.T.B.'s flight in a high-crime area, standing alone, cre......
  • 929 So.2d 628 (Fla.App. 3 Dist. 2006), 3D06-398, M.M.H. v. State
    • United States
    • Florida Florida Court of Appeals Third District
    • May 10, 2006
    ...fled the scene. Generally, flight, standing alone, does not constitute the crime of resisting without violence. D.T.B. v. State, 892 So.2d 522 (Fla. 3d DCA 2004). To do so, the state must prove that "(1) the officer had an articulable well-founded suspicion of criminal activity th......
  • Request a trial to view additional results
11 cases
  • 933 So.2d 587 (Fla.App. 3 Dist. 2006), 3D03-2819, Polite v. State
    • United States
    • Florida Florida Court of Appeals Third District
    • June 14, 2006
    ...such a requirement must be imposed because the forbidden conduct would not otherwise be necessarily improper. See D.T.B. v. State, 892 So.2d 522, 524 (Fla. 3d DCA 2004); Cooper, 742 So.2d at 855; Elliot v. State, 704 So.2d 606 (Fla. 4th DCA 1997); see also Chicone v. State, 684 So.2......
  • 137 So.3d 535 (Fla.App. 4 Dist. 2014), 4D12-2420, R.R. v. State
    • United States
    • Florida Florida Court of Appeals Fourth District
    • April 9, 2014
    ...en banc decision in C.E.L. v. State, 995 So.2d 558 (Fla. 2d DCA 2008), and the decision of the Third District in D.T.B. v. State, 892 So.2d 522 (Fla. 3d DCA 2004), on the issue of whether section 843.02 requires a reasonable suspicion of criminal activity to exist before an individual flees......
  • 967 So.2d 1128 (Fla.App. 2 Dist. 2007), 2D06-3974, J.D.H. v. State
    • United States
    • Florida Florida Court of Appeals Second District
    • November 16, 2007
    ...rising to the level of probable cause, the individual must be allowed to go his way." Id. at 126, 120 S.Ct. 673. D.T.B. v. State, 892 So.2d 522, 524 (Fla. 3d DCA 2004). Thus, the Third District rejected the State's position that D.T.B.'s flight in a high-crime area, standing alone, cre......
  • 929 So.2d 628 (Fla.App. 3 Dist. 2006), 3D06-398, M.M.H. v. State
    • United States
    • Florida Florida Court of Appeals Third District
    • May 10, 2006
    ...fled the scene. Generally, flight, standing alone, does not constitute the crime of resisting without violence. D.T.B. v. State, 892 So.2d 522 (Fla. 3d DCA 2004). To do so, the state must prove that "(1) the officer had an articulable well-founded suspicion of criminal activity th......
  • Request a trial to view additional results